« PreviousContinue »
North-Western Railway Company (L. R. 5 Ex. D. 247), that a company may make a separate charge for sleeping saloons, but it DIRECTION TO TRUSTEES TO EMPLOY A is not clear whether the maximum was exceeded in that case,
PARTICULAR SOLICITOR. which turned the point whether passenger duty was payable in respect of the extra charge, and decided that it was.
The recent case of Foster v. Elsley (30 W. R. 596) seems nection with this subject, it may be stated in favour of the com
to go a good deal further than the authorities on which it panies that “return-tickets are, so far as they are issued at less professed to be founded. The question was as to the effect of a than double the single fare, purely a present to the travelling direction by a testator that a particular person shall be employed public, being outside of the Railway Acts altogether,
as solicitor to his estate. Now, in this, as in all other matters relating to the construction of wills, the intention of the testator is to be ascertained and followed. The question, according to all
the cases, is, did he intend to create a trust or merely to offer IF A PARISH or place be so unfortunate as not to possess a opinion and advice? One would suppose that the answer to this church or chapel, it is legally impossible to levy a poor rate question was to be found by the application of the tests which within it. So it was held by a divisional court (Grove and are applied in the case of precatory words. If there is sufficient LOPES, JJ.) in Reg. v. Dyott on Monday last, and we see no certainty as to the object to be benefited, and as to the benefit to reason whatever to question the correctness of the decision, which be conferred, a valid trust is created. This was the rule acted on merely draws attention to a casus omissus in the statute 7 Will. 4 in the earlier cases. Thus in Williams v. Corbet (8 Sim. 349), & 1 Vict. c. 65, “an Act to alter the mode of
giving a testator who had devised his real estates to trustees on trust to notices on Sunday with respect to various matters." The 2nd let the same and out of the income to keep down charges and section of this statute directs that “all notices which under or by pay outgoings, and accumulate the surplus income, by a codicil virtue of any law or statute, &c., have been heretofore given in appointed the plaintiff to be the auditor of the accounts of all his churches or chapels during or after Divine service shall be estates during the execution of the trusts of his will, and directed reduced into writing, and copies thereof
his trustees to pay to the plaintiff such annual remuneration as it viously to the commencement of Divine service, on the several was usual for an auditor to receive. After the death of the days on which such notices have heretofore been given in the testator the plaintiff, being about to be dismissed by the trustees of church or chapel of any parish or place, be affixed on or near to the will, filed a bill to restrain them from carrying their intenthe doors of all the churches and chapels within such parish or tion into effect. Vice-Chancellor Shadwell said that, under the place, and such notices, when so affixed, shall be in lieu of, and codicil, the plaintiff" has as much right to be auditor as any one as a substitution for, the several notices heretofore given as afore- of the devisees has to the real estates. . . . The testator, when he said, and shall be good, valid, and effectual to all intents and pur- directed that (the plaintiff] should be employed to audit the poses whatsoever." The Act 17 Geo. 2, c. 3—the earliest of the accounts of his estates and be allowed a proper remuneration for his three Acts of that year in relation to the poor rate-provides that trouble, clearly intended to confer a benefit upon him. The trustees, " the churchwardens and overseers, or other the persons therefore, were not justified in attempting to remove him.” In authorized to take care of the poor in every parish, township, or Hibbert v. Hibbert (3 Mer. 681), a testator by a codicil to his place, shall give
public notice in the church of every will directed that his friend Ambrose Humphreys (a solicitor) should rate for the relief of the poor allowed by the justices of the peace be appointed receiver of his real and personal estates, adding the next Sunday after the same shall have been so allowed ; and that he made the appointment for the purpose of benefiting that no rate shall be esteemed or reputed valid and sufficient, so as Humphreys in a pecuniary point of view. Sir W. Grant, in to collect and raise the same, unless such notice shall have been an administration suit, in spite of the opposition of the trustees given.” The prohibitory words of this early statute are too of the will, appointed Humphreys consignee of the estates of the strong to be got over, and we presume that an amending Act will testator in Jamaica, and receiver of the personal estate directed at once be passed to supply the omitted case, which the justices to be invested in the purchase of real estate, without requiring in Reg. v. Dyott had ineffectually endeavoured to supply by a the usual security, remarking that he was not appointed by the cy-pres publication on a conspicuous building—a mode of publica- court but by the testator himself. And in Lawless v. Shaw (1 LI. & tion which is enjoined by more than one statute to supply the G., temp. Sugden, 154),a testator stated it as his “particular desire" want of a church: see, e.g., the 2nd section of the Licensing Act, that both his executors, while acting in the management of all 1828, which directs cons les to fix notices of the days of or any of his affairs under his will, and also a person to whom he Brewster Sessions “ on the door of the church or chapel, and gave a life interest in certain estates, should continue, employ, and where there shall be no church or chapel, on some other public retain the plaintiff in the receipt, agency, and management thereof, and conspicuous place within their districts."
“at the usual fees given to agents," and Sir E. Sugden held that a trust was created for the benefit of the plaintiff, and that he was entitled to be retained as agent. It will be observed that in these
cases the fact that the testator had directed the “usual remuSOME LITTLE TIME AGO we commented on the proposals made neration " or the “ usual fees” to be paid, was not considered as by various promoters of Railway Bills that the Standing Order of rendering the benefit intended to be given to the agent uncertain. both Houses of Parliament, whereby the payment of interest or And we may add that in all these cases it seems to be admitted dividend on calls during the construction of railways is pro- that evidence of non-performance of duty or negligence would hibited, should be rescinded, and we ventured to point out the have been a sufficient defence to the plaintiff's claim to be conreasons why, in our opinion, no alteration should be made. We tinued in office. are glad to observe that a select committee of the House of When, however, Lawless v. Shaw came before the House of Commons has just reported that they consider that the Standing Lords on appeal (5 Cl. & F. 129), Lord Cottenham established a Order in question (No. 167) "is in accordance with sound different criterion for ascertaining the intention of the testator, financial principle, and acts as a protection to the public.” The which he afterwards again asserted in Finden v. Stephens (2 committee, indeed, add a recommendation that “in special cases Phil. 142). According to his judgment in the former case, the it may be permitted to pay interest upon capital during the whole will was to be looked at, in order to see whether it conconstruction of railways or tramways," subject to a number of tained any provision inconsistent with the implication of a trust somewhat stringent conditions, of which the most important is in favour of the person directed to be employed, and if any such that the prospectus and share certificates should bear on the face provision could be found, then the words directing that a parof them an intimation that interest is payable during construction ticular person should be employed, ought to be held as words only; but," considering the bearing of these proposed changes of recommendation only. This principle, no doubt, is correct; but upon the existing law, and the desirability of obtaining uniformity Lord Cottenham proceeded to apply it in this way. The testator in legislation," they are also of opinion that it would be better directed that the plaintiff should be employed in the receipt of to proceed by a general public Bill instead of by a mere modifica- rents, agency, and management at the usual fees, the usual fees tion of the Standing Order.” The question may therefore be being five per cent. on the rents. He thereby, said Lord Cottenham, considered shelved for the present session.
if the words were to be construed as containing a trust, made the
plaintiff an equitable incumbrancer to the extent of one- Clause 13 is of so much legal interest that we transcribe it at twentieth of the income of the estates" which he was to manage. length: The provision that the plaintiff was to manage the estates "Where an offence has been committed, any resident magistrate in the was inconsistent with the devise of the estates to another county or place in wbich the offence was committed, although no person may person for life. It was giving a right to the plaintiff to exclude be charged before him with the commission of such offence, may summon to the life owner from the management of his own estates. With great believe to be capable of giving material evidence concerning the offence, and deference, we venture to assert that a more extraordinary con
he may examine such person on oath concerning any such offerce, and if he struction was never given to a will. The plaintiff was to have see cause, may bind such person by recognizance to appear and give evidence five per cent. as a salary for performing his duty of agent, but the at the next petty sessions, or when called upon; and the law relating to a due performance of this duty was surely a condition precedent to witness when summoned
before a justice having jurisdiction and required to his right to require the percentage.
As agent it would be his give evidence concerning the matter of an information or complaint shall
apply to a witness summoned under this section." duty to obey the directions of the owner. How then could it be said that the plaintiff was an equitable incumbrancer, or that to Clause 15 empowers the Lord-Lieutenant to order the employimply a trust in his favour would deprive the life-tenant of the ment of additional constabulary in any particular district, and to management of his own estate ? The truth seems to be that Lord charge the expense upon the district. Clause 16 provides for Cottenham did not observe the nature of the trust to be implied. compensation where it appears that anyone has been murdered, It is a trust to continue the person named as agent so long as he maimed, or otherwise injured in his person, and that such performs his duties properly, not a trust to continue him as agent murder, &c., is a crime of the character commonly known as whether he performs his duties properly or not, or whether he agrarian, or arising out of any unlawful association, the comobeys the directions of the landowner or not. But until the pensation to be chargeable on the district where the murder, &c., decision in Lawless v. Shaw is altered by the House of Lords, it takes place. must be considered that a direction to employ a person as receiver Clause 18 is general, and is as follows:of rents and agent to manage estates is not binding where there is a devise of those estates.
“A person guilty of an offence against this Act shall be liable on summary
con viotion to imprisonment with or without hard laboor for & term not But how does this apply to a direction by a testator that exceeding six months.” a specified person shall be employed as solicitor to his estate ? The solicitor does not manage the estate, or receive the rents, provided by Parliament such allowance to judges and officers and
Clause 24 provides that “there shall be paid out of moneys or perform business which the trustees or a devisee under a will could perform.
He merely transacts such legal busi- other persons acting in pursuance of this Act ness and gives such advice as the trustees or devisees may
Lord-Lieutenant, with the approval of the Treasury, may deter. request or instruct him to do or give.
There appears to be no inconsistency therefore—even adopting to the full
The last clause of importance is the 27th, which defines an Lord Cottenham's judgment—between a devise of estates and a
“ unlawful association" as an “association formed for carrying on direction that a specified person shall be employed as solici- operations (a) for the commission of crimes; or (b) for encouraging tor to the estate. Yet in Foster v. Elsley (30 W. R.
or aiding persons to commit crimes"; and “ crime" as
any 596), where a testator declared that “my solicitor, William offence against this Act, and also any crime punishable on indictEdward Foster (the plaintiff], shall be the solicitor to
ment by imprisonment with hard labour, or by any greater punishmy estate and to my said trustees in the management and carrying ment.” The same clause enacts that “ arms” shall have the same out the provisions of this my will,” Mr. Justice Chitty held meaning as in the Peace Preservation Act, 1881 (44 Vict. c. 5), by that “the question before the court had been well settled in
section 6 of which that expression includes “ any cannon, gun, the cases of Lawless v. Shaw and Finden v. Stephens, which were
revolver, pistol, and any description of firearms, also any sword, direct authorities against the contention that the declaration in cutlass, pike, and bayonet, also any part of any arms so defined.” the will created a trust which the plaintiff could enforce.” There
The principal statutes for the suppression of crimes in Ireland may be matters in the case, or arising on the will, which do not which have been passed since the Union (for we may omit any appear in the report, but we venture to think that the cases on
special mention of such temporary Acts of the Irish Parliament as which the learned judge proceeded do not justify the conclusion 38 Geo. 3, c. 21, which were continued by such Acts of the United he drew from them. It seems obvious that a testator may have Parliament as 43 Geo. 3, c. 117, and afterwards suffered to very good reasons for desiring that his trustees should have the expire), appear to be the Suppression of Insurrection Acts of 1822 advice of a solicitor in whom he has confidence ; and we fail to commonly called the Coercion Act) of 1833 (3 & 4. Will. 4, c. 4);
(3 Geo. 4, cc. 1-3); the Suppression of Local Disturbances Act see why effect should not be given to such a reasonable desire.
which established courts martial for the trial of agrarian and other offences; the Prevention of Crime Act, 1847 (11 & 12
Vict. c. 2); and the Peace Preservation Act, 1870 (33 & 34 THE IRISH CRIME BILL.
Vict. c. 9), all of which Acts were temporary, but were continued,
or, if suffered to expire, occasionally revived, with or without The main question of legal interest which arises upon the Irish amendments. Crime Bill recently introduced into Parliament is how far the Both the Act of 1822 and the Act of 1833 suspended the right numerous provisions which it contains are new, and how far they of trial by jury. This was done by the Act of 1833 by the are re-enactments of prior statutes.
establishment of courts martial. The Act of 1822_with which The chief provisions of the Bill are these :-Clauses 1—3 give only the present Bill can be compared—proceeded not by power to the Lord-Lieutenant to issue a special commission to empowering the judges of the superior courts to hold trials any three judges to try certain crimes without the assistance of a without the assistance of a jury, but by giving (section 5) jury. Clause 4. provides a punishment for “ intimidation," and the Lord-Lieutenant power to appoint a King's counsel or clause 5 for rioting, or for, " within six months after the execu- King's serjeant to preside at special sessions. The power might tion of a writ of possession of any house or land, taking posses- be exercised in proclaimed districts only, and the jurisdiction was sion of such house or land without the consent of the owner.' to try without a jury, or with a jury, if the presiding judge saw Clause 6 provides a punishment for membership of an“ unlawful fit, any person accused of any of the matters and things in association."
Clause 7 gives the Lord-Lieutenant power to respect whereof any person” was, by the Act, “ declared to be an prohibit public meetings which he believes “to be dangerous to idle or disorderly person ”—a definition which included persons the public peace or safety.” Clauses 8 and 9 give constables special found abroad at night, or administering unlawful oaths, or circupowers in proclaimed districts to arrest strangers or nocturnal lating notices to excite riots, or having in their houses or posseswanderers
. Clause 10 gives the Lord-Lieutenant power to sup- sion“ any arms, or pike, pike-head, spear, dirk, or any other press treasonable
newspapers. Clause 11 gives powers of search offensive weapon of any kind whatsoever." The first three clauses for, and seizure of, arms, papers, documents, instruments, or of the Bill, therefore, though not without precedent, appear to go articles " suspected to be used for the purposes of any secret much beyond the prior enactment in pari materiá. criminal society. Clause 12 authorizes the expulsion of aliens. Clauses 4–6 make it "an offence against this Act" to commit
what are, in most cases, common law offences, except that clause effect. Consequently, any persons accused of murders committed 5 covers ground already partly covered by the Forcible Entry before the passing of the Bill will be tried before a jury, and not Acts, two of which, 5 Ric. 2, st. 1, c. 7, and 8 Hen. 6, c. 9, being before the special commission, if such commission should issue. anterior in date to Poynings' Act, appear to apply to Ireland by It was held, indeed, in Wright v. Hole (6 H. & N. 217) that the virtue of that Act. Otherwise these clauses are the most novel rule that no statute has a retrospective operation does not apply to in the Bill. Clause 7, which gives the Lord-Lieutenant power to an enactment dealing with procedure only. This case prohibit public meetings, is taken with very little variation from followed with considerable doubt by the Court of Queen's Bench the 1st section of thə Act of 1833, which section however was in Kinbray v. Draper (L. R. 3 Q. B. 160), and we cannot think repealed when that Act was continued in 1834 by 4 & 5 Will. 4, it would be held to govern the case of an enactment taking away c. 38. In connection with this branch of the subject, it may be the right to a trial by jury in a criminal case. If, therefore, it be pointed out that the Riot Act, 1 Geo. 1, st. 2, c. 5, does not apply deemed expedient that the Bill should be retrospective in this to Ireland. An Irish statute, 27 Geo. 3, c. 15, copied from that respect, the retrospective operation should be given by clear Act, was continued from time to time by the Irish Parliament, and express
words. but lapsed by the effect of the union. In some Irish Crime Acts since the union-e.g., in the Act of 1870, it was temporarily re-enacted. Clauses 8 and 9, which give power to arrest
CORRESPONDENCE. strangers and nocturnal wanderers, repeat, almost word for word, sections 23 and 25 of the Act of 1870, except that they are
WITNESS CAUSES IN THE CHANCERY DIVISION. slightly less stringent than those sections by limiting the power of aimest to “suspicious circumstances in the case of strangers.
[To the Editor of the Solicitors' Journal.] Clause 10, which is aimed at the press, is taken from sections 30 interest those who wish to know how the Judicature Act is working.
Sir, --The following history of a witness action in chancery may -34 of the Act of 1870, but is more stringent than those sections, which interposed a warning notice between the offence and the Easter, 1881. In November last it was in the paper before Mr. Justice
The cause in question was about six out of the paper a month before seizure of the newspaper,
gave the proprietor a right of action Chitty for three days, and was not reached. During Mr. Justice Chitty's in case of illegal search or seizure, both of which saving clauses absence on circuit it got into the paper before Mr. Justice Kay, and was are omitted from the present Bill. The power to search for arms there for another three days. Mr. Justice Chitty having returned, it conferred by clause 11 has been contained in a succession of Acts again got into his paper and was there for another three days. The in pari materiá, but the power to search for treasonable papers is
, North on the following Tuesday. I informed all my witnesses, but on
was that it was to be taken by Mr. Justice so far as we can discover, quite new. If this clause should require Monday morning I heard that Mr. Justice North had changed his mind amendment it might be well to add " daggers” to the definition of and would not take witness actions. Finally it came on last Tuesday, and
arms,” these weapons having been twice proscribed, by 38 Geo. was disposed of on Wednesday. So that the witnesses on both sides 3, c. 21 (Irish), s. 5, and by 3 Geo. 4, c. 1, s. 11.
have had to attend on four different occasions before the case was Clause 12, which authorizes the expulsion of aliens, we noticed heard. last week.
This is no fault of the individnal judges, and perhaps the case was Clause 13, which we have printed at length above, is taken unfortunate, as Jumbo, by special leave, occupied a day and a half which almost word for word from section 13 of the Act of 1870. We onght to have been given to witness causes, and the Belgian Date Coffee consider this so valuable an enactment for the general administra- Kay. I do rather complain that a case which had stood over for the
Company winding-up petition occupied a loug time before Mr. Justice tion of justice, that we think it might well be applied to all parts convenience of parties and had never been in the paper for the day, of the United Kingdom, and made perpetual." It would have should be allowed to have precedence of a case which had been in the the salutary effect of substituting a regular examination by a paper for the day, because the solicitor found that all the causes justice of the peace for much irregular questioning by the police, before it in the general list had been disposed of. By removing his which proceeds from the want of it. Clause 15, which empowers marking as to standing over, a very unfair advantage was gained. the Lord-Lieutenant to increase the constabulary force, is taken,
But the remedy is not to be found in altering that practice. I find a with little variation, from ss. 3—7 of the Act of 1847,
the growing opinion that the assizes are the proper places at which to try issues
of fact, whether in chancery or at common law. Had that been the principal variation being that those sections applied to “pro, practice the case I refer to would have been disposed of at Derby a year claimed districts” only, whereas clause 15 is to have a general ago, and the expenses of witnesses would have been about one-tenth of application “when it appears to the Lord-Lieutenant from time what they will actually amount to.
James HEBLIS. to time that, by reason of the existence or apprehension of crime 71, Princess-street, Manchester, May 18. in any district, that the number of constabulary ordinarily employed in such district are not sufficient." Clause 16, which provides for compensation to injured persons or to the relations of
STAMP DUTY, murdered persons, is taken from section 39 of the Act of 1870,
[To the Editor of the Solicitors' Journal.] which, however, it materially varies by substituting nominees of Sir,—Your correspondent of last week, “ Jurisconsultunculus," is in the Lord-Lieutenant for a presentment of the grand jury to error, he must permit me to say, in stating that in my letter to you of adjudicate upon the claim. Both the section and the clause give the previous week (ante, p. 431) I expressed the opinion that section 8 of the next of kin a locus standi to apply for compensation in the the Stamp Act, 1870, made no alteration in the previous law. I ex. case of murder. The nominees are to have the same powers as pressed the belief that section 8 was intended to embody the law of the
But I did not expressly, nor did I intend impliedly, to justices sitting in petty sessions. There appears to be no provi- leading cases. sion for the representation of the district which would have to say that the said section, in the intention of its framers or in its actual
operation, was restricted to the law of the said cases. bear the burden, and which would be indirectly represented by a As regards the Statute of Anne quoted by your correspondent, I ven. grand jury. For these and other reasons the i3th section of the ture to remark that, as Queen Anne is dead, so will your correspondent Act of 1870 might have been re-enacted with greater advantage. find, upon duo study, that the Geueral Stamp Statutes of Anne ceased to The remaining clauses of the Bill, which chiefly relate to pro-exist upon the coming into operation of the (consolidating) Stamp Act, cedure, do not call for special notice. It will have been observed 1870, and Inland Revenue Repeal Act, 1870 ; and that, secondly, as to that the Bill is to a very large extent a repetition of former enact- whether, the two cases named by your correspondent (Rushbrooke v. ments; that the Act of 1870 is the principal one borrowed from, 23) are still law, to the extent, even, of its being permissible to cite
Hood, 17 L. J. C. P. 58, and Doe. d. Hartwright v. Fereday, 12 A. & E. that clauses 4–6, which we may perhaps term the “anti-Boycotting them in elucidation of the proper construction and application of section clauses,” are the chief novelties, and that the Bill, for its working, 8 of the Act of 1870, I will not further remark upon than to say—as I mainly depends, as did the prior enactments, upon the Lord. deem myself safe in saying—that the said cases would not now be cited Lieutenant for the time being.
by the Inland Revenue authorities,
VERITAS. It is of no little consequence to point out that the Bill, if it May 24. passes, has no retrospective operation. There are no words giving it such operation, and without such words, in accordance
[To the Editor of the Solicitors' Journal.] with the maxim, * nova constitutio futuris formam imponere debet, Sir,-Deeds of the nature of that referred to by Mr. Simey at p. 403 non præteritis” (2 Inst. 202), no statute has a retrospective are common in parts of Lancashire, and are generally, so far as I have
seen, impressed with an extra 10s. stamp, on account of the insertion the time when the act was committed. If there had been no prior decisions on of the express declaration referred to. The commissioners admit, I prior statutes, his lordship did not suppose the point could have been decently believe, that it is difficult to lay down any general rule, and they have argued. But there bad been decisions on the old Bankruptcy Acts that a man been known, on adjudicating in two cases, to require the extra stamp must be taken to be " using the trade of merchandise" so long as he did not where the deed contained the express declaration, and to dispense with pay debts which he bad contracted while ho was carrying on the trade, though an extra stamp in a case where the right of redemption and power of he had ceased to carry it on. But it was to be observed that the words used in sale were conferred by the addition of a few words to the uses limiting though it was a well-settled rule that when there were two statutes in pari the rent to the mortgagee. The commissioners, I understand, suggested materia, and the later one repealed the older, and re-enacted one of its protwo ways of avoiding any difficulty as to the extra stamp ; one being visions in the same words, the decisions on the words of the old Act governed a declaration in the mortgage deed that any rents reserved to the mort- the same words of the new Act, that rule applied with diminished force gagee should be subject to redemption and to the power of sale ; and the when the words of the old Act were changed in the new Act. That being so, other, a separate deed to the same effect after creation of the rents ; the there was the decision of the Court of Appeal in Ex parte Schomberg, and it separate deed to bear the extra stamp.
B. appeared to bis Jordsbip entirely to govern the construction of the words
being a trader” in sub-section 3. Even if his lordship was inclined to differ from tbat decision, which he was not, he was bound by it. LINDLEY, L.J.,
thought that Ex parte Schomberg was clearly in point, and it appeared to him CONDITION AS TO LAST RECEIPT FOR RENT.
to have been rightly decided. The older decisions were on the construetion
of different words, and they were given at a time when non-traders could not [To the Editor of the Solicitors' Journal.]
be made bankrupt at all, HOLKER, L.J., concurred.--SOLICITORS, Haigh & Sir,-When you say in your able article in to-day's issue on the “Con- Agar. dition as to Last Receipt of Rent” that “the provision in section 14 of the Conveyancing Act has rendered absolute forfeiture of a lease im.
APPEAL-TIME-PAYMENT OF DEPOSIT "AT OR BEFORE ENTRY OF probable," have you not overlooked sub-sections 6 and 8 of the same
APPEAL-BANKRUPTCY RULES, 1870, R. 145-BANKRUPTCY RULES, Novemsection, especially the latter, which leaves the law of forfeiture for rent
BER, 1878, R. 2.-In a case of Ex parte Luxon, before the Court of Appeal upaffected apd unaltered ?
R. N. R.
on the 18th inst., the question which arose in Ex parte Rosenthal (ante, p. Falmouth, May 20.
434) was raised again in a somowhat different form. The question arose upon [Not at all: 15 & 16 Vict. c. 76, 88. 210, 212, provides for relief from the construction of rule 145 of the Bankroptcy Rules, 1870, which provides forfeiture for non-payment of rent, and the excepted cases in sub-section that the deposit on a bankruptoy appeal shall be paid to the registrar "at or (6) of section 14 are not practically probable causes of forfeiture as before the time of entering " the appeal, in conjanction with rule 2 of the regards a purchaser.--Ed. S. J.]
Rules of the 22nd of November, 1878, whicb provides that the deposit “ shall in future be paid by the party intending to appeal into the Bank of England.” In Ex parte Rosenthal the appeal was from a county court to the Chief
Judge, and the Court of Appeal said that the proper practice now is for the registrar THE " LAW LIST."
to give a direction to the bank to receive the deposit before he enters the [To the Editor of the Solicitors' Journal.]
appeal, and not to enter the appeal until he receives from the bank a certifi
cate that the deposit has been paid. In Ex parte Luxon an order made by Sir, I shall be obliged if you will inform your readers that it is my Bacon, O.J., was signed on the 24th of April
. On the 28th of April a intention at the next annual general meeting of the Incorporated Law notice of appeal, dated that day, was taken to the office of the registrar Society to move a resolution requesting the council to take such reason- of appeals, and was entered by his clerk in the proper book. The clerk able and proper steps as may be necessary for restoring to the Law List gave à direction to the bank to receive the deposit“ payable on entering the asterisk that (continuously to the year 1881) distinguished the names the appeal, and the deposit was paid to the bank on the 8th of May. of the members of the society appearing therein.
A certificate by the bank of the payment of the money was taken to the 2, Gray's-inn-square, London, May 22.
A. ELLEY FINCH. registrar's office, but no fresh entry of the appeal was made by the registrar's
clerk. When the appeal came on for hearing it was objected by the respond. ent that it could not be entertained, because the deposit had not been paid "at or before " the entry of the appeal, it having been, in fact, got paid till
ten days after the entry. The Court of Appeal (JESSEL, M.R., and LINDLEY CASES OF THE WEEK.
and HOLKER, LJJ.) overruled the objection. JESSEL, M.R., said that the same course ought, in this respect, to be adopted with regard to appeals to the
Court of Appeal and appeals to the Chief Judge ; the appeal ought not to be ACT OF BANKRUPTCY-TRADER—“ DEPARTING FROM DWELLING-HOUSE, entered until the certificate of the bank of the payment of the deposit was
ABSENTING HIMSELF"-SUMMARY ADJUDICATION-BANK- brought to the registrar. In the present case the appellant had not been in RUPTCY Act, 1869, s. 6, SUB-SECTIONS 3, 6-BANKRUPTCY Rules, 1870, R. fault, but the registrar's clerk had made a mistake in entering the appeal too 65.-In a case of Ex parte McGeorge, before the Court of Appeal on the 18th soon.-SOLICITORS, W. Bohm; W. Moon. inst., a question arose on the construction of sub-section 3 of section 6 of the Bankruptcy Act, 1869, and of rule 65 of the Bankruptcy Rules, 1870. Section 6, sub-section 3, defines as one of the acts wbich constitute an act LIQUIDATION RESOLUTIONS_REFUSAL OF REGISTRATION-APPLICATION of bankruptcy, “ That the debtor has, with intent to defeat or delay bis FOR RETURN OF STAMP DUTY-EX PARTE APPEAL-SERVICE ON REGI8creditors, done any of the following things—namely”. (inter alia)," being TRAR-Costs.-In a case of Ex parte Izard, before the Court of Appeal on the a trader departed from his dwelling-house, or otherwise absented himself. 18th inst., the question arose whether, when the registration of liquidation And, by rule 65, “Where the act of bankroptcy alleged in a petition to have resolutions has been refused, the Court of Bankruptcy has any jurisdiction to been committed by the debtor is that the debtor, being a trader, has de- order the retarn of the ad valorem stamp duty which, under the order as to parted from his dwelling-house, or otherwise absented bimself, the petition fees of the 1st of January, 1870, bas to be paid upon the presentation of the may be heard forth with, on a sealed copy of the petition being left at the resolutions to the registrar for registration. The court (JESSEL, M.R., and osaal or last known place of residence or business of the debtor.” In the LINDLEY and HOLKER, L.JJ.) held that there is no jurisdiction to make
such present case a bankruptcy petition had been presented against a debtor, wbo had an order, and that the only mode of obtaining a return of the duty is by been engaged in trade, by a creditor, whose debt had been contracted during memorializing the Commissioners of Stamps. The application in Ex parte the trading. The act of bankruptcy alleged was, that the debtor, being å Izard for a return of the duty was made by the trustee appointed by the trader, bad departed from his dwelling-house, or otherwise absented himself. resolutions, which also intrusted the registration to him. He had paid the It appeared that before the time when the act of bankruptcy was alleged to duty, which amounted to over £50, out of his own pocket. The registration have been committed, the debtor had sold his business and had ceased to trade. of the resolutions was refused on the ground that they had not been passed by Mr. Registrar Pepys refused an application for a summary proceeding under the proper statotory majority, some of the proofs of the persons who voted at rule 65, on the ground that, on the true construction of sub-section 3, the act the meeting as creditors being expunged by the registrar. Mr. Registrar of bankruptcy there defined could be committed only by a person who was Hazlitt refused the application for a return of the stamp duty. The trustee actually a trader at the time when the act in question took place. In coming appealed. His notice of appeal was addressed to the registrar alone, and was to this conclusion the registrar relied upon the decision of the Court of Appeal served upon him, and he appeared by counsel on the hearing of the appeal. in Ex parte Schomberg (23 W. R. 204, L. R. 10 Cb, 172), upon the construc. The court held that the registrar ought not to have been served, and that tion of sub-section 6 of section 6, which defines as another act of bankroptcy being served he ought not to have appeared. And they declined to give bim the service of a debtor's summons, and that "the debtor, being a trader, has, any costs. JESSEL, M. R., said that it must be understood for the future that for the space of seven days succeeding the service of such summons, neglected ex parte appeals from the London Bankruptcy Court are not to be addressed to pay such sum, or to secure or compound for the same. .” On the construction to the registrar or to any one else. Appeals pot ex parte never were addressed of this sub-section, the Court of Appeal held, in Ex parte Schomberg, tbat it to the registrar.-SOLICITORS, May, Sykes, f. Batten ; W. W. Aldridge. was essential that the debtor should be actually a trader at the time of the service of the summons, and that it was not sufficient that he should have been a trader at the time when the summoning creditor's debt was con- SPECIFIC PERFORMANCE – AGREEMENT FOR SALE OF MEDICAL PRACTICEtracted. The Court of Appeal (JESSEL, M.R., and LINDLEY and HOLKER, AGREEMENT CONTAINED IN LETTERS_UNCERTAINTY.-In a case of May v. L.JJ.) affirmed the registrar's decision. 'JESSEL, M. R., said that he could not Thomson, befora the Court of Appeal on the 18th inst., the question arose see any distinction between the words “ being a trader” as used in sub-sec- whether specific performance could be enforced of an agreement by one tions 3 and 6 of section 6; the words were identical. If the words "being a medical man to sell bis practice to another, and there was the further question trader” in sub-section 6 meant "being a trader" at the time when the summons whether a concluded agreement had been constituted by a series of lettere. was served, the same words must, in sub-section 3, mean" being a trader” at The plaintiff and the defendant were both medical men. On the 6th of April,
1881, a Mrs. Needes, who was an agent for the sale of medical prac. Aot, be bound to assigo and convey accordingly." The court (JESSEL, tices, and who had been employed by the defendant, having heard that M. R., and LINDLEY, L.J.) held that, where there is a second mortgage, of the plaintiff wished to dispose of his practice, wrote to the defendant :-"I which the first (legal) mortgagee has notice, the mortgagor cannot call on have just had a first-class non-dispensing practice in the best part of Ken- the first mortgagee to convey the property to bis nominee when the second sington placed with me to be disposed of in consequence of failing health. mortgagee is willing to redeem the first, and desires to have the property Premium for practice £1,000, for lease £500, and furniture at valuation.” conveyed to bia. The court said that section 15 only substitutes the right The defendant then saw the plaintiff, and on the 13th of April wrote to him : to call for a convoyanos to a third party for the right to call for a re-coarey. "I shall be pleased to purchase your lease, &c., on the terms stated in Mrs. ance, and that it does not apply to a case where, before the Act, the Needes's letter to me of the 6th of April--i.e., premium for practice £1,000, mortgagor would not bave been entitled to call for a re-conveyance. In lease £500, furnitura at valuation. I shall trust to you to give me the best such a case the second mortgagee, as an assign of the mortgagor, would introduction you can during the three months, and afterwards, if necessary.' before the Act have been entitled to call on the first mortgagee to convey In a letter written the same day to Mrs. Needes, the defendant said :-"I the property to him.-SOLICITORS, C. & 8. Harrison & Co.; R. S. Taylor, shall be ready to pay the deposit money on receipt of corrected agreement.” Son, g Humbert ; Harting, Son, d: Ellis. Further correspondence ensned, and a draft of an agreement was prepared, but a difference arose about the repairs of the house, and ultimately the defendant declined to proceed with the matter. The action was brought for PRACTICE-ACCOUNTS IN CHAMBERS — ADJOURNMENT OF ITEMS TO JUDGE the specific performance of what the plaintiff alleged to be a concladed agree. -SOLICITOR-Costs. In a case of Opton v. Brown, before the Court of ment between himself and the defendant, and for damages. Bacon, V.C., Appeal on the 24th inst., the question aroge whether, when accounts are dismissed the action, being of opinion that there was no agreement sufficiently being taken by a chief olerk in obambers, and one of the parties is dis. definite to be enforced by the court. The Court of Appeal (JESSEL, M.R., satisied with the allowance or disallowance of an item, he has a right to and LINDLEY and HOLKER, L.JJ.) affirmed the decision. They expressed an bave the question at once adjourned before the judge, or whetbor he must opinion that an agreement by a medical man to introduce another medical take out a sommons for the purpose. Fry, J., held that a summons most man to his patients was not one of which specific performance could be be taken ont. The Court of Appeal (JESSEL, M.R., and LINDLEY, L.J.) enforced. The question then arose whether the letters between the parties held that this was unnecessary. JESSEL, M,R., said that ander the constituted a binding and concluded agreement, so as to entitle the plaintiff to Chancery Amendment Act of 1852 it was the right of the suitor to have the damages for the breach of it. Jessel, M.R., thought that the decisions of matter at once adjourned before the judge, without taking out any the courts bad gone far enough in spelling out contracts from letters, when
Of course, if a solicitor took an adjournment before the judge both the parties had intended that a formal contract should be executed, of overy item in an account, no business could be transacted. In theory using general expressions to make a contract between the parties, which there was the right to do this, but in practice it was impossible that it neither of them intended. In the present case, the letters written by the should be done. But, though the Act had been in force for thirty years, defendant to the plaintiff and to Mrs. Needes on the 13th of April did not saoh bad been the good sense of solicitors that no saob difficulty had ever contain the same terms. The main subject of the negotiation was the arised. The practice was to wait aptil the taking of the account was compractice; the lease and the furniture were mere adjuncts. A sale by a medical man of bis practice was a sale of an introduction to his patients ; he pleted, and then to take an adjournment once for all to the judge. When, had nothing else to sell. He could persuade patients with whom he bad bowever, a question of principle was involved in an item, it was impossible infuence to employ the man whom he recommended as a qualified prac. adjourn the item at once before the judge. If a solicitor were so unreason
to wait until the account was completed, and then it was quite right to titioner. In such cases there was always, according to his lordship's experience, a stipulation that the selling doctor should retire, and that he should able as to insist on the adjournment of every item in an account, this not practise within a certain distance, and sometimes, also, a stipulation that would be an abnee of the process of the court, and bis lordship bad do be should not sue the patients. Could it be supposed that the defendant doubt that the jadge would ia such a case have jorisdiction to panish the intended to buy the practice without any stipulations of this kind ? It was solicitor by making him pay the costs personally. Such a case, however, impossible to suppose this. Did, then, the plaintiff accept the tero.s contained bad pever arisen, and his lordship hoped it never would arise. The pracin the defendant's letter ? Did he asgent to the term that there should be a
tico in the Rolls Obambers was for the one party to give previous notice three months' introduction ? His lordship could not find it in any of his in writing to the other party of the items in the account. LINDLEY, L.J., letters. He did not bargain to give the defendant a three months' introduc- copourred. -SOLICITORS, Shum, Crossman, d: Co. ; R. Ballard, tion. He only offered to do his best to give him ao introduction. The difference was very important. If by reason of the plaintiff's death or his illhealth he was incapacitated from giving the introduction, in the latter case
LANDLORD AND TENANT-ATTORNMENT-Stat. 4 ANNE, C. 16, 8. 9.-In no action would lie for damages. On the letters themselves his lordship was
a case of Allcock v. Moorehouse, before the Court of Appeal on the 23rd inst., of opinion that there was not a complete and concluded bargain. Then,
a question arose as to the effect of section 9 of the Act 4 Aone, c. 16, which
of turning to the draft agreement which was sent by Mrs. Needes, it provided provides that "all grants or conveyances thereafter to be made for a three months' introduction, and there was a clause that, if the plaintiff the reversion or remainder of any messuages or lands shall be good and
of the was prevented, from ill-health or otherwise, from giving this introduction, there effectual to all intents and purposes, without any attornment was to be an abatement from the purchase-money. This showed that the particular tenants upon whose particular estates any such reversion or remain. introduction was considered a most important element; indeed, the substance der shall and may be expectant or depending, as if their attornment had been of the thing which wae to be sold. In bis lordship's opinion there had been had and made." The action was brought in the Queen's Bench Division to only negotiations, and the parties bad never entered into a definite agreement
recover rent. The plaintiffs were the trustees of a building society, and they upon the serious subject of the introduction. He thought that the court
were mortgagees from one Shier, the owner of some houses which be had dewould be making a new agreement for them if it was to say that, instead of cised by parol to the defendant. The defendant had assigned all his estate a three months introduction, the introduction was to be for a reasonable and interest under the demise to Swan and Hadwen, who had paid rent for time-i.e., a time wbich somebody else should think to be reasonable.
some time to Shier, though he had given receipts to the defendant and had LINDLEY and HOLKER, L.JJ., concurred.-SOLICITORS, M. James Brown; not acknowledged the assignees as his tenants. Swan and Hadwen did not Kearsey, Son, d. Hawes.
attorn to the plaintiffs. A divisional court, consisting of Mathew and Cave,
JJ., held that the action could not be maintained, and this decision was Practice-ORDER FOR AFFIDAVIT or DOCUMENTS_COPY FOR SERVICE, JESSEL, M. R., said that when the defendant' had made the assignment be
affirmed by the Court of Appeal (Jessel, M.R., and LINDLEY, L.J.). INDORSEMENT - CONSOLIDATED ORDERS OF COURT OF CHANCERY, ORD. 23, R.
ceased to have any estate or ioterest. But it was alleged that he was under a 10-ORD. 31, RR. 20, 21.-In a case of Thomas v. Palin, before the Court of liability to Shier, because Shier had not agreed to accept the assignees 28 bis Appeal on the 19th inst., the question arose whether when an order has been tenants. His lordship was not prepared to say that the defendant was so made for an affidavit, or a further affidavit
, of documents, it is pow necessary liable, but, aggoming that he was, the plaintiffs were assignees of Shier's tbat the copy of the order for serv ce on the party who is to make the affidavit estate and not of any contract. The question was whether the conveyance of should be indorsed, as was required by rule 10 of order 23 of the Consolidated the reversion gave a right agaiust the defendant. Clearly, without the Orders of the Court of Chancery, with a note that the party, if he neglects statute 4 Anne, c. 16, it could not give such a right. The point was to comply with the order within the time limited for his doing so, will be liable whether the defendant had any estate. In his lordship's opinion he had not. to be attached. It is now, by rule 21 of order 31 under the Judicature Act, Then it was argued that, assuming the defendant had no estate left, still, as sufficient, in order to found an application of attachment for disobedience, between himn and Shier, he was liable for the rent or for use and occupation. that such an order should be served on the solicitor of the party. And, But, if so, still he would only be liable by contract and not by reason of any moreover, an attachment can now, by virtue of ord. 44, r. 2, be obtained only estate. Then it was said that the estate from year to year was a tenancy for a upon notice. North, J., held that it is still necessary that the copy for year certain, plus a contract, and, therefore, was not assignable at common service should be indorsed as under the old practice. The Court of Appeal law. His lordship thought otherwise. An estate from year to year. Was a (JESSEL, M.R., and LINDLEY, L.J.) held that this indorsement is no longer term, though of a peculiar kind. It was either a present or a fotore interest, required. -SOLICITORS, Brownlow f Howe; Chester & Co.
and so was assignable under 8 & 9 Vict. o. 106, s. 6. LINDLEY, L.J., said
that it was possible that, if Shier had not assigned, he might have maintained MORTGAGOR AND MORTGAVEE-TRANSFER INSTEAD OF RE-CONVEYANCE
an action for rent against the defendant after his assignment to Swan and ConveyanciNG AND LAW OF PROPERTY Act, 1881, 8. 15.-In a case of Hadwen, but he agreed with the divisional court that there was no privity of Teevan v. Smith, before the Court of Appeal on the 20:h ingt., a question did not come within the Statate of Anne-SOLICITORS, Gregory, Rowcliffes, f
contract or of estate between the plaintiffs and the defendant, and the case arose on the construotion of section 15 of the Conveyanoing Act, 1881, which provides that “where a mortgagor is entitled to redeem, he shall,
Co.; Pritchard, Englefield, & Co. by virtue of this Aot, have power to require the mortgagee, instead of roconveying, and on the terms on wbiob he would be bound to re-convey, to MORTGAGOR AND MORTGAGEE-SALE-PARTITION-CONVEYANCING AND Assign the mortgage debt, and coavey the mortgaged property to any third Law of PROPERTY Act, 1881, s. 25, SUB-SECTION 2.-In a case of Gibbs person as the mortgagor directs ; and the mortgagee sball, by virtue of this v. Haydon, before Fry, J., on the 11th inst., a question arose as to the