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which latter provision was evidently intended to protect the gas collectively and individually, and their officers and servants, from all damages and water companies whose pipes are the subject of a much more and costs in respect of such accidents and injuries." elaborate protection in the clauses of section 8. Section 10 also This section, which is very well drawn in the interest of the will be found to provide that the depth and course of the under public, would not indeed render the company liable for an ground works are to be agreed upon between the company and accident caused by a wire being blown down by an extraordinary the local authority, and that, “in the event of ultimate difference storm of wind or other act of God (see Nugent v. Smith, L. R. between the company” and that authority, “the depth, course, / 1 C. P. D. 423), but it would seem to render them liable for and position shall be determined in England or Ireland by two the act or default of contractors, and for any injury caused justices, and in Scotland by two justices or the sheriff, while by the ordinary wear of a wire. The mere falling of a wire would section 17 contains very stringent regulations as to "the opening also be probably held to be primâ facie evidence of negligence of streets and public roads."
on the analogy of Kcarney v. London, Brighton, and South Coast It will be found that the provisions respecting overhead Railway (L. R. 6 Q. B. 759), in which the Exchequer Chamber wires are of quite a different character. First, it is provided affirmed the decision of the Court of Queen's Bench, that the by section 12 that the company shall not place a telegraph defendants were liable for an accident caused by the fall of a over, along, or across a street or public road, except with brick from a bridge without any assignable cause except the consent of the body having the control of such street or public vibration from a passing train. " It was the duty of the defendroad. Secondly, it is provided by section 21 that in the metropolis ants," said Kelly, C.B., “from time to time to inspect the bridge and large towns the consent of the local bodies shall be sufficient and ascertain that the brickwork was in good order and all the authority, without any further consent, to place and maintain a | bricks well secured. telegraph over any dwelling-house or other building in or near But a very large portion of the telegraph lines in this country a street, subject to certain provisions for the protection of owners have become vested in, and subject to, the control of the Postand occupiers. Thirdly, in the case of streets elsewhere than in master-General under the Telegraph Act, 1868 (31 & 32 Vict. c. the metropolis or large towns, section 23 enacts that, before the | 110), and the powers of purchase conferred thereby, and exercompany proceeds to place a telegraph “over, along, or across a cised thereunder. Do the rights of owners and the public constreet or road," they must publish notices showing that the tinue notwithstanding such a purchase, or does the rule hold good required consents of the street or road authority have been obtained; that no petition of right lies for a tort? This might be an during twenty-one days after the publication of which notices | interesting, and would no doubt be a difficult, question to consection 24 and the subsequent sections give the owner or occupier sider if no express words having application to it could be found of the adjoining land power to object and to have the Board of in the Telegraph Act, 1868. Fortunately, section 6 of that Act Trade called in to settle any differences between him and the contains such express words, which are, so far as material, as company.
follows: We have said that in the metropolis and large towns there is “All Acts ... sball . . . remain in full force, and all matters to be a special protection for owners and occupiers. Two of the sub- done, continued, or completed by or against the company so selling their sections of section 21 are of so much importance that we extract
undertaking, their officers or servants, shall or may (as the case requires) be them at length. They are as follows :
done, continued, or completed by or against the Postmaster-General, his
officers and servants, and those Acts . . . shall be construed as if the " Where the company ... places a telegraph directly over any Postmaster-General had been named tberein, instead of the company selling dwelling.bouse, they shall not place it at a less beigbt above the roof their undertaking; and it shall be lawful for any person to enforce any thereof than six feet, if the owner, lessee, or occupier thereof objects to such Act . .. by action, suit, or other legal proceeding against the Posttheir placing it at a less height.
master-General in the same court and in the same manner ... as if this " If at any time the owner, lessee, or occapier of any building or land | Act had not passed." adjoining to a building directly over which building or land the company ...i places a telegraph desires to raise the building to a greater height
There is an exemption for Acts expressly varied by, or inconor to extend it over such land, the company sball increase the height or sistent with, the Act of 1868 itself, but we can find no express otherwise alter the position of the telegraph so that the game may not variation of the clauses we have referred to in that Act, nor interfere with the raising or extension of the building, within fourteen days
any provisions which could be deemed inconsistent therewith. after receiving from the owner, lessee, or occapier a notice of his intention to raise or extend the building, &c., &c."
Here we observe that the rule “ cujus est solum ejus est usque ad cælum” is recognized, but with the important limitation that
REVIEWS. it is recognized in cases only where dwelling-houses or buildings exist, either on or adjoining to the land, at the time of the con
JUDGMENTS. struction of the telegraph. In such cases the owner is omnipotent, and may displace the telegraph wire as and how far he pleases.
Tur JUDGMENTS AND ORDERS OF THE High Court or Justice AND COURT
or APPEAL, CHIEFLY IN RerereNCE TO ACTIONS AssigveD TO THE But where there is no house or building at the time of the con
CHANCERY DIVISION. By Loftus Leigh PEMBERTON, one of the Regisstruction of the telegraph, and the owner wishes to exercise his
trars of the Supreme Court of Judicature, THIRD Edition. William building rights long afterwards, can he do so to the detriment of Clowes & Sons, Limited. the wires ? We very much hesitate to say that he could not; but,
Mr. Pemberton states that his book has been almost entirely re-written, looking to sub-section 4, which provides for full compensation being but that the general arrangement remains much the same. This arrangemade to the owner of any land over which the company places a ment, however, differs somewhat from that adopted in the first edition. telegraph, “and which may be shown to be in any way pre- We have now the Rules of the Supreme Court collected and annotated in judicially affected thereby," we think, on the whole, that the the first chapter, including the rules relating to appeals. Then follow building rights of such an owner are cut short by the wires, and
chapters relating to infants, married women, accounts, partnership, that he must fall back upon the compensation clauses for redress
administration, injunctions, and other branches of jurisdiction, followed
by a chapter devotel to the statutory jurisdiction of the Chancery when he wishes to exercise them over the space occupied by the Division. Under each of these headings the statutes, rules, cases, and wires.
forms of orders are collected, but the three first-named contents so far However this may be, the consent of the local authority seems | predominate that the work might be almost more properly termed a to protect overhead wires from interference in all cases where digest of the practice of the Chancery Division than a more collection of private owners do not choose to interfere. However dangerous Ljudgments and orders. they may be, it is extremely doubtful whether the authorities
The notes to the Riles of Court in chapter 1 are usually short, and could obtain an injunction to remove them; and it seems that the
might be occasionally improved by the addition of omitted cases or by
explanation of the effect of the cases cited. The value of a book of sole remedy of a person injured by the falling of an overhead wire
practice consists largly in the completeness with which the point of would be by means of an action for damages under section 42,
each decision is indicated. In many of the notep this is done well and which provides that
tersely, but we meet rather too often with stringe of cases prefaced with “The company shall be liable for all accidents, damages, and injuries happen.
the word “gee." And we think that in some cases the usefulness of the ing through the act or default of the company or of any person in tbeir em notes would have been increased if they had contained some further ployment, by reason or in consequence of any of the company's works, and explanation of the practice. We may illustrate what we mean by the shall save harmless all todies having the control of streets or publio roads, | note on order 26, rulo 4a, “Dismissal for want of prosecution." Tho
note to this rule is “See Litton v. Litton, 3 Oh. D. 793 ; Ambroise v..
London, 1st June, 1882. Evelyn, 11 Ch. D. 759; Evelyn v. Evelyn, 13 Ch. D. 138." A few
R and others to Kwords would indicate the different events to which these cases refer, and Dear Sir -We received your favour of the 23rd ult., and attended with save the practitioner the trouble of taking down three volumes of same before the Solicitor of Stamps and urged the points you raised, and, reports; and a few more words would tell him how the application after leaving the matter with him for some days for consideration, he to dismiss is usually made (Freason v. Loe, 26 W. R. 138). Some of contends that the officer is right in his demand for additional duty. He the notes, however, are elaborate and complete-see, for instance, informs us that cases of this description have been very often and very those on production of documents, at p. 44, and security for costs, carefully considered, and the practice which has been established cannot at p. 109. The provisions of the Consolidated Orders and the be departed from. The necessity for the additional duty can easily be statutes bearing on the matter of the rules are inserted in the obviated by the execution of a separate deed between mortgagor and votes, and forms of orders are occasionally given. No general mortgagee covering all sales, or, if it is thought of in time, such a complaint can be made of lack of care in the collection or state- declaration may be inserted in the power of sale in the mortgage. ment of cases relating to what may be termed the main parts of the It seems, therefore, the additional duty must be paid.We are, Sir, book. Take, for instance, chapter 7, relating to injunctions. We have yours obediently,
&c., &c.] here an excellent digest of cases and collection of forms of orders classified under the heads of the different matters to which injunctions
PROVISIONS FOR SETTLEMENT OF OTHER OR AFTER. relate. The cases seem to be in general well stated and judiciously
ACQUIRED PROPERTY OF INTENDED WIFE. arranged; we should rather demur, however, to the insertion of the club cases (Fisher v. Keane, &c.), under the general head of “Execu
[To the Editor of the Solicitors' Journal.] tors and Trustees.” Those cases, as well as many of the cases where Sir, -The case of Williams v. Mercier, of which you give a full note injunctions have been granted or refused relating to the dismissal of in your current number (page 479), no doubt will interest conveyancers, masters of grammar schools and ministers of dissenting communities,
and it prompts me to supplement my recent letters to you on Stamp come more properly under the heading of “Improper exercise of semi Duty (ante, pp. 431, 462), by offering repaarks upon points of “stamps" judicial functious,” On the whole, however, we think that this, as well which arise upon the said above-named clauses in settlements, one of as the other chapters relating to the chief subjects of chancery practice, which clauses was the subject-matter of Williams v. Mercier, and which constitute a very useful digest of the cases and collection of forms. The (until it reached the Court of Appeal, and according to the decision of portion of the work relating to the statutory jurisdiction is a very compre- the latter court) was strangely overlooked and misconstrued by three hensive annotated collection of the statutes bearing on the special juris
judges and the counsel in the case on both sides. diction of the court. The Conveyancing Act, 1881, is included, but the In view of the oversight and misconstruction occurring in this case I author has prudently forborne to express opinions as to the effect of its may venture to state that, in my dealing with settlements with reference provisions.
to the stamp duty therein chargeable, I occasionally find practitioners not fully appreciative of the operation of a provision like the one in the settlement in Williams v. Mercier.
I believe that the provision for securing to the trusts the wife's afterCORRESPONDENCE.
acquired property had its beginning in the not very remote past, and
that the more extended provision, securing alike the lady's non-specified STAMP DUTIES.
present property, is of still more modern origin. The ordinary wording
of the clause applying to after-acquired property (only) (omitting the [To the Editor of the Solicitors' Journal.]
beginning and concluding words) is, “ that all real and personal propSir,-1 send you copy of my further correspondence with the Inland erty (if any) to which the said [intended wife! or the said [intended Revenue Office. I have, of course, given in, as iny client canrot enter on husband) in her right shall at any time during the said intended covera contest with Government.
RALPH SIMEY. ture become beneficially entitled ... shall," &c.; and to secure Sunderland, June 3.
also the non-specified present property the clause requires only to have [The following is the correspondence referred to :
imported into it “now is”-as, " that all real and personal property (if
any) to which the said [intended wife] now is," &c. And it is this [Copy.]
small verbal, but in operation very important, addition that I have now 59, John-street, Sunderland, 23rd May, 1882. and again found practitioners not fully appreciative of. As I write I R and others to K- .
have before me a book of precedents, having the two settlement clauses Gentlemen,-In answer to your letter of 25th ulto., I have to submit just named, the second one having "now is " ; but the marginal note to the following observations, which please put before the Solicitor of both is (only)" to settle wife's after-acquired property." Stamps :
As well outside the Stamp Act, so under it, « now is” is of material 1. The declaration substituting the rent for the land as security is import, as will be presently explained. really inoperative. It adds nothing to the legal effect of the other parts Upon referring to “ Settlement," in the schedule of the Act (Stamp of the instrument, because there is no consideration for the reservation of Act, 1870), it will be found that the charge of " settlement” (i.e., ad the rat. charge to the mortgøgee, and the law would, therefore, imply in valorem settlement) duty is upon any definite and certain principal sum him a resulting trust of it for the vendors, subject to his mortgage. of money, or any definite and certain sum of stock, or any security.
2. Whether the preceding proposition be or be not accurate, the in With the clause for the settlement of the lady's after-acquired propstrument is not one "containing or relating to several distinct matters,” erty (only) no question of " settlement” duty arises, as there is not within the meaning of 33 & 34 Vict. c. 97, 8. 8. On the contrary, its present the element of definiteness or certainty (within the meaning of whole contents are intended for the accomplishment of only one object the Stamp Act-merely to state this and not here support the proposition -- viz., to insure security to the grantee without prejudicing the mort. by argument), although it may, in passing, be observed that, if the gagee's rights.
settlement otherwise attracted ad valorem duty, a separate 10s. would It has been held (Price v. Thomas, 2 B. & C. 518, and Pratt v. be payable in respect of this after-acquired property clause. But the Thomas, 4 C. & P. 544) that a lease is sufficiently stumped with ad question of ad valorem duty would arise if the clause had the words valorem duty, though it contain a covenant by a surety for payment of “now is," 80 securing to the trusts the lady's non-specified present the rent.
property (if any), because, should she possess any of the kind named in It has also been held (Wo?seley v. Cox, 2 Ad. & Ellis N. S. 321) that the Settlement item of the Stamp Act, it would be no less chargeable a transfer of shares is sufficiently stamped with ad valorem duty with "settlement” duty by reason that it was not specified. Hence though the purchaser covenants with the company to abide by its regula- the practice of the Inland Revenue, in adjudication cases of settlements tions.
having the clause, of requiring a statement as to whether the lady has The quertion really seems to be, Is the clause in question referable to any non-specified property, and the nature of it. avy other than the main and leading purpose of the deed ? In Rush. | These clauses, operating upon the intended wife's property, mostly broole v. Ilood (17 L. J. C. P. 58) Wilde, O.J., observes, in delivering occur in settlements where the lady brings in property which is specified. judgment : “ The whole object of the deed is to carry out the contract But I have had a case or two before me where the lady having, and of purchase, ... and thus the matters carried out by this deed are known to have, present property, yet, for reasons moving the parties con. pot separate and distinct matters, but they all form part of one and the cerned, there was no statement of it in the settlement, but only the same transaction.” And, further, “It appears to me to be one indenture fuller of the two clauses named was adopted. The conveyancer knew framed for the purpose of carrying out one single object."
| that the clause would be effectual to secure to the trusts all the then The case of Hadgett v. Commissioners of Inland Revenue (L. R. 3 present property, and that acquired during the coverture, but he did Ex. D. 46) is not adverse to my view, for the judgment seems to bave not contemplate the stamp question which arose upon the deed. prcceeded upon the fast that the Stamp Act in terms requires a duty of To give another case, by way of illustration :--The lady brought into ten shillings for an appointment of trustee and also a duty of ten shillings settlement money and stock therein specified, and the deed contained the for a vesting order.
| clause with “now is." And, upon inquiry, I was informed that the lady I trust, therefore, the solicitor will pass this deed to be stamped as did possess present (non-specified) property, she having, in fact, a originally proposed.-Yours faithfully,
Ralph SIMBY. vested reversionary interest, or one which would vest upon the marriage,
CASES OF THE WEEK.
in the whole of £10,000 consols, but that as there were three not old which it has been specially called, and that therefore the council are lives to drop before it fell into possession, counsel had deemed it inex- unable to send to the members notice of the resolution you wish to propedient to specify the interest in the deed ; but the interest was, of pose. course, secured to the trusts by the clause named. This was chargeable The council would point out to you that your motion may be more with ad valorem duty, not merely on the value of the reversion, but ou fittingly brought forward at the annual general meeting convened for the the market value of the consols at the date of the settlement !
7th July next, in which case your notice can be sent to all the members. There are, of course, other similar, but variously worded, clauses 1-I am, dear Sir, yours faithfully, E. W. WILLIAMSON, Secretary. inserted in settlements, and I will name one other which raised a nice point Edmund Kimber, Esq., 15, Walbrook, E.C. of stamp duty. Instead of “now is,” the clause was, that “if the intended
15, Walbrook, E.C., London, Jupe 3, 1882. wife should, at the date of the intended marriage, possess any property,"
Dear Sir, I am in receipt of your note of yesterday's date, but I do &c. This setlement was sent in for official adjudication of the stamp
not observe anything in the notice convening the meeting for the 9th duty, and it was submitted that no inquiry could properly be made upon
inst. making it exclusive of other business. the clause, as by it no present property was settled ; and the office
The resolution passed by the society on the 15th of July last was in assented.
these words : “ That, in the opinion of this meeting, it would be June 6.
desirable that, in addition to the afternoon annual business meeting in N.B.--Since writing the foregoing I have remembered and have July, two meetings should be held in the months of January and April re-perused) the articles on the “after-acquired” property clauses which respectively, and that these additional meetings take place at such bour appeared in your journal for 1869-70 (14 SOLICITORS' JOURNAL, 4, 24), as the council may appoint." and the article in the next volume on Bower v. Smith (19 W. R. 39, Neither of these meetings has been held, notwithstanding the many 15 SOLICITORS' JOURNAL, 575), the matter of which (inter alia) justifies my subjects beyond those referred to the Legal Procedure Committee criticisms as to the ignoring, practically, of “now is.” To those desirous loudly calling for redress; and now I gather from your note that the to pursue the subject while it is fresh I would advise tbe perusal of the council do not propose any further meeting until the annual one next articles named, but if you can find space for it, I will here reproduce the month beyond that on the 9th inst., which you say is special first paragraph of the first article :
I do not think this is fair to the members, to the professiou, or to the “There are few clauses in morriage settlements of the ordinary 1 public.--Yours faithfully,
EDMUND KIMBER, type which give rise to so much litigation as the coven
E. W. Williamson, Esq.] ant to settle & wife's after-acquired property. This is to a great extent accounted for by the simple fact that the clause in question attempts to provide in a few words for all the various modes and circumstances in or under which property may come to the wife, so that few, or it may be none, of those which actually happen are in any particular case consciously present to the mind of the draftsman. It must, however, be confessed that the latter is not altogether free from blame in the matter, for while the numerous and sometimes HUSBAND AND WIFE — DIVORCE, PERMANENT ALIMONY-SECURITY BY over-subtle distinctions which have been taken render care in this clause HUSBAND-ORDER FOR MONTHLY PAYMENTS-DIVORCE ACT, 1857 (20 & 21 especially needful, it is actually the worst. drawn portion of the settle
Vict, c. 85), s. 32-29 VICT. C. 32, s. 1.-In a case of Medley v. Medley, ment. We propose, by a short digest of the more recent decisions on the
before the Court of Appeal on the 6th inst., a question arose upon the consubject, at the same time to guard our readers against negligence in
struction of section 32 of the Divorce Act of 1867, as modified by section 1 of
the Amendment Act of 1866. Section 32 of the Act of 1857 empowers the framing the covenant in question, and to show the interpretations which
court on making a decree for a divorce “ to order that the husband sball, to the have been given to some of the forms in which it is frequently ex.
satisfaction of the court, secure to the wife such gross sum of money, or such pressed.”
annual sum of money for any term not exceeding her own life, ... as it shall deem reasonable." And section 1 of the Act of 1866 provides that the court may in such a case “make an order on the husband for payment to che wife duriog
their joint lises of such monthly or weekly sums for her maintenance and THE INCORPORATED LAW SOCIETY.
support as the court may think reasonable." In Medley v. Medley a deoree [To the Editor of the Solicitors' Journal.]
for dissolution of marriage had been pronounced, on the ground of desertion
and adultery of the husband, and it was ordered that the husband should, to Sir,- On Thursday last, the last meeting of the Legal Procedure the satisfaciion of tha court, secure to the wife the gross sum of 7,500 within Committee of the Incorporated Law Society took place in the society's one month, or that within the same time he do secure to the wife the sum of lecture-room, and it was agreed that at the meeting on the 9th inst. the £500 per annum for her life ; "and in the event of his not doing so, then question of the county courts should be brought up instead of pursuing the that he pay to the wife the sum of £500 per annum by equal monthly pay. matter further in this committee. I now enclose the correspondence which
ments of £41 13s. 41., the first payment to be made on the 29th day of June, and has taken place since for publication, because I do not think the question
tbe succeeding payments to be made respectively on the 29th day of each is being fairly dealt with. A sub-committee was appointed to draft a
month.” The Court of Appeal (Jessel, M.R., and LINDLEY aid Bowen, report, and, at the expenditure of great time and labour, this was done,
L.JJ.) held that the latter alternative part of the order was wrong. JESSEL, but when the time arrives for its settlement those members best known to
M.R., said that in the former Act “securing to the wife" a gross such of money
or an aonual sum of money was contrasted with actual payment to the wife, the council, and the council together, succeed in shelving the matter iv
and, as he read section 32, the money was not to be paid over to the wife as it this way.
gross sum, but when secured was to be paid to her from time to time. It I protest against it most earnestly.
the word "secure” included payment, then the second Act (29 Vict. c. 32) 15, Walbrook, London, June 3.
would have been useless. That Act, after reciting that it sometimes happened The following is the correspondence referred to :
that a decree for dissolution was obtained against a husband who had no prop.
erty on which the payment of any gross or annual suin could be secured, pro. 15, Walbrook, E.C., London, June 1, 1882.
vided that the court might order monthly or weekly payments to the wile oy Dear Sir,- I understand that the meeting which is called for the 9th
the husband. This Act could not have been passed to meet any supposud inst. is practically to take the place of the spring meeting which was
difficulty that an “ annual sum" could be paid once a year only, and to enabie resolved upon at our last annuol general meeting; and, therefore, that | the sum secured to be paid by monthly or weekly instalments. If, as in this other business besides that of which you have given notice can be dis. | case, the husband had property abroad, then there was property on which the cussed at it. I therefore beg to give notice that I shall move the resolu gross or annual sum could be secured, and the second Act, enabling the court tion which I subjoin at that meeting. It arises out of what transpired to direct monthly or weekly payments, did not apply. If the husband were in to-day at the meeting of our Legal Procedure Committee, and I think tbis country, there would be po difficulty, as he could be attached it be failed will meet with the general acquiescence of the profession.-Yours faith
to coinply with the order. But it appeared to him to be clear tbat it was not fully,
intended by the first Act to order payment to the wise direct, and that being E. W. Williamson, Esq., Secretary, Incorporated Law Societz, Chan.
so, the alternative part of the order must be discharged. LINDLEY, L.J., was cery-lane.
of the same opinion. At first, it might appear as it the term "secure" in "That as the tendency of recent and prospective legislation is to extend
section 32 of the first Act included payment, bac when looked at more closely,
and also when the second Act was taken into consideration, it became plain that the jurisdiction of the county courts, the whole question of their practice "secure" did not mean payment, but that the sun, gross or angual, was to and procedure be referred to a committee of this society to consider it and
be secured in such a way as to provide a fund for the wife. The alternative to report to the council thereon.”
part of the order, therefore, could not be sanctioned under section 32. The June 2, 1882.
later Act only authorized monthly or weekly payments when the husband had. Dear Sir, I am directed by the council to acknowledge the receipt
no property available for securing the money, and did not apply to a case
such as this, where the husband bad property which could be made the subject of your letter of the 1st inst., containing notice of your intention to
of the security, though situated abroad. Neither under section 32 nur under move a resolution at the special general meeting conveped for the 9th the Act of 1866 could the alternative part of the order be sustained.' inst.
BOWEN, L.J., concurred. Their lordships refused leave to appeal to the I am desired to inform you that under the 14th bye-law no other House of Lords. -SOLICITORS, Eardley, Holt, & Richardson ; Harwood &: business can be transacted at a gpecial general meeting than that for Stephenson.
MORTGAGOR AND MORTGAGBE- REDEMPTION ACTION-ORDER FOR SALE, LIQUIDATION OF INFRINGER-DAMAGES- BANKRUPTCY Act, 1869, 8. 31. CONVEYANCING AND LAW OF PROPERTY AMENDMENT ACT, 1881, s. 25,- Ina cage In a case of Watson v. Holliday, before Kay, J., on June 7, the question was of Woolley v. Colman, before Fry, J., on the 6th ingt., a question aroge upon raised whether a patentee could prove in the liquidation of a person who bad Beotion 25 of the Conveyanoing Act, 1881. The section provides that, infringed his patent for the amount to be found due on taking the account of “(1) Ady person entitled to redeem mortgaged property may bave a judg- tbe profits made by such infringement. The action was brought to restrain the ment or order for sale instead of for redemption in an action bronght by bim infringement, and an account of profits and damages were asked for. Before either for redemption alope, or for sale alone, or for sale or redemption, the defendant delivered his defence, proceedings in bankruptcy were taken for in the alternative. (2) Io any action, whether for foreologore, or for the liquidation of his affairs; he afterwards delivered & defence, but did not redemption, or for sale, or for the raising and payment in any manner appear at the hearing. The trustees in liquidation did not put in any defence, but of mortgage money, the court, on the request of the mortgagee, or of any they appeared at the hearing. They contended that the amount sought to be person interested either in the mortgage money or in the right of proved was "a demand in the nature of unliquidated damages arisiog otherwise redemption, and notwithstanding the dissent' of any other person, than by reason of a contract or promise,” within the meaning of section 31 of the and notwithstanding that the mortgagee cr any person 80 interested Bankruptoy Act, 1869, and that it was, therefore, not proveable. The infringe. does not appear in the action, and without allowing any time for ment of the patent was proved to the satisfaction of the court. Kay, J., said that redemption or for payment of any mortgage money, may. if it thinks the amount in question was not damages, or in the nature of damages, but fit, direct & sale of the mortgaged property, on gach terms as it that the patentee, by taking the account, adopted the act of the infringer, thinks fit., including, if it thinks fit, the deposit in court of a reasonable saying, as it were, that it was done on his behalf, and he claimed the profits of eam fixed by the court to meet the expenses of sale and to secure perform.it. Such amount was, therefore, proveable in the liquidation. The trustees ance of the terms. (3) But, in an action brought by a person interested
mast pay the costs of the action, they had put themselves in the debtor's in the right of redemption and seeking a sale, the court may, on the
place, taking ap his defence, cross-examining the witnesses to show that there application of any defendant, direct the plaintiff to give such security for
had been no infringement.-SOLICITORS, Shum, Crossman, Crossman, f costs as the court thinks fit, and may give the conduct of the sale to any
Pritchard, for Kidson, Son, & McKenzie, Sunderland; Carr, Son, & Thornton. defendant, and may give such directions as it thinks fit respecting the costs of the defendants, or any of them." The question was whether, in an action for redomption of mortgaged property, brought by the mortgagor
LIFE ASSURANCE COMPANY-INVESTMENT OF DEPOSIT.-In the case of
In re Scottish Metropolitrın Life Assurance Company, before Bacon, V.O., against the first, second, third, and fourth mortgageon, an order for sale on the 8th inst., the question arose whether the £20,000 deposited in could be made on the interlooutory application of the plaintiff before the trial of the action.
De court under the Life Assurance Companies Acts, 1870, 1871, and 1872, being The application was made by the plaintiff by summons " money under the control of the court,” can be invested on mortgage instead in ohambers on the 6th of May, the writ having been issued on the 26th of of remaining invested on Government securities. The 3rd section of the Act April. The first and second mortgagees opposed the application, but it was of 1870 (33 & 34 Vict. c. 61) directs that the deposit shall be invested by the assented to by the other mortgagees. It was urged that section 25 gave the Accountant-General of the Court of Chancery (now the Chancery Paymaster) ooart no power to make the order on an interlocutory appliontion. And reli. l in one of the securities usually aocopted by the court for the investment of ance was placed on the cases decided on the construction of the somewhat funds placed from time to time ander its administration, and that he shall similar power oonfered on the court by section 48 of the Improvement of return the deposit after the accumulated funds of the company amount to Jurisdiction in Equity Act of 1852, which section is repealed by the Act of 1881. £40,000. The rules made by the Board of Trade under the Act of 1872 (35 & That section contained the words "instead of a foreclosure," wbioh are 36 Vict. C. 41), s. 1, do not contemplate investment on mortgage. Under omitted in section 25 of the Act of 1881. FRY, J., held that there was rule 2 securities may be brought into court in lieu of money, and rulo 7 power to make the order on an interlocutory application. He said that, I provides for the payment of interest on the deposit while in court. BACON, ander the words of the section, the only thing necessary to the existence | V.C., refused to grant the application to invest on mortgage, on the ground that of the power to make an order for sale was the request of a party there was no precedent or provision for parliamentary deposits of any descripinterested. Ou that request being made the discretion of the court tion being invested by the Chancery Division on mortgage, and that the court arose. It was contended that the power of the court was restricted by the would, to a certain extent, lose its control over the fund by making such a decisions apon section 48 of the Aot of 1852. But the power given to the precedent. ooart by section 48 was only a power to make an order for sale in lieu of a decree for the foreclosure of the equity of redemption. Such a deoree could
DIVORCE-PERMANENT MAINTENANCE-ANNUITY-DEED-SETTING ASI DE ho made only at the hearing of the suit, and, consequently, an order for sale in lien of it could be made only at the bearing. The words " instead of a
-DUM CASTA CLAUSE_JURISDICTION.-In the Probate, Divorce, and Admiralty
Division, on the 6th inst., judgment was given in Bradley v, Bradley upon an foreologare” were wanting in section 25, and there was no reason wby the
application to set aside a deed by which the respondent had been ordered to power of the court should be fettered with a limit not to be found in the
settle an annuity of £100 upon the petitioner. In 1877 the petitioner had words of the section, and no reason in the nature of things why there should
obtained a decree dissolving her marriage on the ground of her husband's be any such limit. In a case like the present there would be a great saving
adultery and cruelty. The respondent was then ordered to settle upon the of time and expense in making an order for sale at once, and, in a fitting petitioner the sum of $100 per annum, and it was referred to one of the conveycase, his lordship thought that the order could be made on an interlocutory
ancing counsel of the Chancery Division to prepare the necessary deed. After application. His lordship added that he thought the powers oonferred by the draft deed had been prepared, the respondent applied to the court to insert sub-sections 1 and 2 were distinct and separate powers. In exeroising
in the deed a condition that the annuity should be payable only so long as the bis discretion to order a sale he must have regard to the interests of respondent should lead & chaste life, but Hannen, P., refused to order the the first and second mortgagees who opposed the application, and he must, deed to be thus modified (Bradley v. Bradley, L. R. 3 P. & D. 47). The deed therefore, fix saob a sum for the reserved bidding as would protect their was executed on the 29th of July, 1878, and the respondent, on thə 30th of interests, and yet not a sum 80 large as to render the sale abortive. His April last, moved the court for an order for the delivery up of the deed to be lordship accordingly fixed as the reserved price the sum of $8,000, which cancelled, and for the release of the respondent from his covenant, it being was a little more than the total amount dao upon the first and second mort- alleged that the petitioner bad, since the date of the deed, led an unchaste life. gages, and be ordered that the plaintiff should give security to the amount of It was contended that it was an implied term in the deed that the annuity £150 for the defendant's costs of the sale, and he gave the plaintiff the con- should be payable only dum casta, and the cases of Fisher v. Fisher (2 Sw. & daot of the sale, on the ground that he and the third and fourth mortgagees Tr. 414) and Chetwynd v. Chetwynd (L, R. 1 P. & D. 39) were relied upon. were the persons really interested in obtaining the largest possible price for On behalf of the petitioner her uncbaste conduct was denied, and it was argued the property, and the third and fourth mortgagees were willing that the -(1) that the words dum casta could not be implied as part of the deed ; (2) plaintiff should have the oopduot. Tbe sale was to take place out of court, that the court had no jurisdiction to cancel the deed ; and (3) that the matter but the purchase-money was to be paid into court in the action.-SOLICITORS, was res judicata, since the court had already refused to impose the condition H. W. Chatterton ; Bellamy, Strong, of Baker ; Nicholl Morgan; J. W. now sought to be imported into the deed. Her counsel relied upon Gladstone Sykes ; Boxall & Boxall.
v. Gladstone (24 W. R. 739, L. R. 1 P. & D.'442), and Hart v. Hart (50 L. J.
Ch. 697). HANNEN, P., now rejected the application. He had already decided PRACTICE-REVIVOR-COUNTER-CLAIM-ORD. 19, R. 3-ORD. 50.-In a case
that the condition ought not to be inserted in the dead, and if his decision on of Andrew v. Aitken, before Fry, J., on the 6th inst., the question arose
that occasion was incorrect it ought to have been made the subject of an
appeal. He held that he had no power to cancel the deed, and that, if any whether on the death of a defendant to an action, who had delivered a statement of defence and a counter-olaim, it was Decessary to obtain an
ground for doing so had been disclosed, the application ought to have been order of revivor in respoot of the counter-claim. After the plaintiff had
made to the Chancery Division.-SOLICITORS, Shaen, Roscoe, Massey, & served potice of trial of the original aotion, and the sotion had been set
Henderson ; Nash & Field. down for trial, the defendant died. The plaintiff then obtained an order to carry on and prosecate the proceedings in the action against the defendant's execators. After this the defendant's exeontors applied for an order of CASES BEFORE THE BANKRUPTCY REGISTRARS. course, giving them liberty to carry on and prosecute the counter-claim
(Before Mr. Registrar BROUGHAM, acting as Chief Judge.) against the plaintiffs in the original action. The registrar deolined to make the order as an order of course, and the point was then mentioned to the
May 26.-Ex parte Evans, Re Ferris. court ex parte. It was urged that, baving regard to the decisions in Beddall || Money received by a bankrupt's solicitor the day previously to the v. Maitland (29 W. R. 484, L. R. 17 Ch. D. 174), and Lumsden v. Winter filing of a liquidation petition, and with a knowledge of the client's (L. R. 8 Q. B. D. 650), that a counter-olaim is an independent action, it insolvency, ordered to be repaid to the trustee, after deducting the was necessary that the order asked for should be obtained. FRY, J., l amount of the solicitor's taxed costs in reference to the liquidation proadopted this view, and made the order.-SOLICITORS, Pitman & Son.
This was an application on behalf of the trustee of the property of John PATENT-INFRINGEMENT ACCOUNT OF PROFITS-PROOF FOR AMOUNT IN Andrew Ferris, a bankrupt, for an order declaring that the payment on or about the 13th of May, 1881, by the bankrupt to Messrs. Hadden, Woodward, the costs incurred in that proceeding. Under the old Act, if a debtor, before & McLeod, solicitors and co-partners, of the sum of £150, or so much thereofhe filed his petition, paid money to his solicitor, the solicitor was always bound as was not required for the purpose of paying the costs of, and incidental to, to give credit for the amount which he bud received. In the present case the the liquidation proceedings instituted by the bankrupt up to the refusal of the debtor knew that he was insolvent, and that he was about to file a liquidation registrar to register the resolutions thereunder (such costs having been taxed petition, and his Honour thought the payment was made in contemplation of and allowed at tbe sum of £80 11d. 9d.), was fraudulent against the trustee ; bankruptcy. Even if there was evidence that Mr. McLeod would not file the and that Messrs. Hadded, Woodward, & McLeod might be ordered to pay over petition unless so much money was paid on his past debt, he would still come to the trustee the som of £150, or so much thereof as was not required for the to the conclusion that the payment was made in contemplation of bankruptcy. purpose of paying the said costs.
But the evidence satisfied him that the money was paid for the costs and exOn the 14th of May, 1881, the bankrapt, J. A. Ferris, presented his petition penses to be incurred in the liquidation, and he must accede to the application, to tbe London Bankruptcy Court for the liquidation of his affairs by arrange and order the balance of the amount, after payment of the costs in the liquiment or composition with his creditors, and at the meetings which took place dation, to be paid to the trustee. The respondents must also pay the costs of under the proceedings a resolution was passed for liquidation by arrangement, the application. and not in bankruptcy, but registration of such resolution was ultimately Solicitor for the trustee, W. H. Hudson. refused by the registrar, on the ground that the statatory majority in favour Respondents in person. thereof had not been obtained,
On the 23rd of August, 1881, the debtor was adjudicated bankrupt upon the petition of Mr. Barnard, one of his creditors, and on the 9th of September, 1881, a trustee was appointed of his estate.
COUNTY COURTS. It appeared that shortly before the bankrupt filed his liquidation petitionnamely, on the 4th of May, 1881–he executed a bill of sale of the whole of his
BOURNEMOUTH. stock-in-trade as a surgeon, chemist, and druggist, and also of his furniture
(Before Mr. SERJEANT TINDAL Atkinson, Judge.) and effects, in favour of the Consolidated Credit and Mortgage Corporation
May 24.-Jones y. Short and another. (Limited) for an advance of £300.
The bapkrupt stated that, having received the money, he went to the office Commission on letting and sale of property-When estate agent not of his solicitors, Messrs. Hadden, Woodward, & McLeod, and informed Mr.
entitled to commission. McLeod what he had done. Mr. McLeod said, “What on earth are you His HONOUR, in giving jadgment, said:--This is an action brought by the doing this for ? it is a most foolish thing to do. You must be insolvent now."
ipsolvent now." | plaintiff, an estate agent at Bournemouth, to recover from the defendants, After several interviews McLeod said the best thing he could do was to file a
who are builders, the sum of $50 for commission on the letting and sale of a petition, and an accountant was called in to investigate the position of his
bouge at Parkstone. The facts, as proved at the trial, so far as they are affairs. The bankrupt had previously been engaged in litigation, and Mr.
necessary for the decision in this case, are, that on the 13th of January, 1881, McLeod had acted as his solicitor. Mr. McLeod asked him for some money, one of the defendants, Short, called at the plaintiff's office and instructed him but no bill of costs had been delivered. Mr. McLood demanded £150 to pay
to let or sell the house in question. The rental asked was $110 a year, and the expenses of the petition the bankrupt was about to file. There was no
for the purchase £1,800. The terms and particulars of the property were mention, the bankrupt said, of past expenses, but Mr. McLeod said that if he entered in the plaintiff's books. Orders were given to various persons to view, did not give the money he (Mr. McLeod) would have to pay fees out of pocket, | and the usual means employed by estate agents to give publicity to the and he must decline to conduct his case.
letting and sale. A Mr. Thompson on passing the plaintiff's office saw in the Mr. McLeod, upon being examined, stated that by the 11th of May
May | window a photograph of the house, and procured from the plaintiff the he received the bankrupt's instructions as to the filing of the liqui- | particulars and terms of letting and sale. Nothing more than this was actually dation petition. About two months before that he had asked the
done in the matter by the plaintiff. Mr. Thompson having met the defendants bankrupt for money on account, and he promised it, but did not give it.
promised it, but did not give it on the premises accidentally, concluded with them to become their tepant at He spoke to bim several times in the course of that two months, and told the reptal of £110 a year. Some time afterwards the trustees of Mr. him he should not be able to go on with the matters referred to in the evi- Thompson's marriage settlement having in their hands & sum of money dence unless he gave him some money. The bankrupt said, “ All right, you to invest under the terms of the deed, employed it in the purchase shall have some.” On the day before the petition was filed, Mr. McLeod
of the house, deriving the information that it was for sale exclusively stated that he again spoke to him on the subject. He said to the bankrapt, from Thompson. It is conceded that if the plaintiff is, under “ You want me to file this liquidation petition for you, and it is an expensive these facts, entitled in law to recover the amount claimed, then £50 is matter. I have already incurred considerable expense for you, and I sball not due from the defendants. With regard to cases of this nature the law incur any more unless you give me a considerable sum of money. I think may now be considered settled, namely, that where persons having property I asked him for £200 if I remember rightly, but it ended in his giving me such as that in the present case-namely, houses and land—to dispose of, and £150." The money was paid on account of expenses generally and to be place them in the hands of an estate agent with instractions to procure a incurred.
purchaser or tenant, apd the relation of purchaser or tenant has been brought "Question :-Do you now claim that you are entitled on behalf of your firm
about through his agency, he is entitled to his commission, although he has -you are not bound to answer this question, you may reserve your answer if done nothing more than having furnished the information by which the party you please—but do you claim to hold this simply against your expenses of selling and the party buying have been brought together. In other words, liquidation, orin relation to prior costs ?"
where an estate agent is employed to find a buyer or tenant, he is entitled to " Answer :- I claim to hold it as against costs generally inourred at that
old it as against costs generally incurred at that his commission if he introduced the parties co each other, though the princitime and since."
pals eventually settled the terms between themselves : Bray v. Chandler (18 Messrs. Hadden, Woodward, & McLeod's costs of the liquidation proceed
C. B. 718); Green v. Bartlett (32 L. J. C. P. 261). Upon the authority of ings had been taxed and allowed at £80 11s. 9d., and demand had been made these cases, and the facts proved, I am clearly of opinion that as far as the on behalf of the trustee for payment of the balance of £69 89. 3d., and re commission charged by the plaintiff on the letting of the defendants' bouse, fused.
£9 78. 6d., the plaintiff has earned it, and is entitled to recover. With respect E. C. Willis, Q.O., and F. C. Willis, for the trustee.-The payment of the
to the commission claimed upon the sale to the trustees of Mr. Thompson's money to Mr. McLeod is a fraudulent preference, and a fraud on the Bank marriage settlement, $40 129. 60., a question of some difficulty arises. The ruptcy Act. McLeod, knowing the insolvent position of the bankrupt, and information given to them of the house being for sale is not that he was about to file a liquidation petition, had no right to say, "There furnished directly by the plaintiff, bat indirectly by Mr. Thompson, who is an old debt of mine, you must pay me the old debt and the costs of the cannot in any sense be said, for that purpose, to be an agent of the plaintiff. liquidation petition." The appropriation of the money in payment of a pa st The terms of the marriage settlement are not before me, and it may be debt cannot be supported. They cited Thornton v. Hargreaves (7 East, 544); I assumed that the purchase was made by the trustees for parties other than Ex parte Hall, Re Cooper (L. R. 19 Ch. D. 585); Ex parte Halliday, Re Liebert Mr. Thompson, and if that is so, can it be said that the plaintiff introduced the (L. R. 8 Ch. 283).
purchasers to the defendants? In the case cited, Bartlett v. Green, in giving Grain, for the respondents. The transaction does not come within the judgment Erle, C.J., said, “ The question whether the agent is entitled to be doctrine of fraudulent preference. On May 13 the bankrupt had a perfect paid commission on the sale is one wbich has often been litigated, and the rule right to deal with his property as he pleased, subject to the provisions of the has been to hold that there has been a sale by the agent which would entitle Bankruptcy Act, and McLeod was justified in saying, “I estimate my costs bim to such commission if the relation of buyer and seller bas been really at £150. There are certain fees which cannot be allowed in bankruptcy, and caused and brought about by what has been done, that is-if it can be said be unless you pay me that sum I will not act for yon." The payment was a per- was the causa causans by which the property was sold.” In the present case, fectly legitimate transaction by a person not under disability, and there is no I apprehend proxima causa is not sufficient; it must be shown that the plainevidence tbat, as between McLeod and the bankrupt, the amount was an untiff was the causa causans of the sale to the trustees. This view is supported fair amount. It is admitted that a large sum of money was due to McLeod in by the case of Antrobus v. Wickens (4 F. & F. 291), which is an authority t) pending matters. If the contract be not fraudulent, how can the trustee claim show that it is not enough to prove that a loan, for procuring wbich a commis. the money back from a person who received it from the legal owner? Secondly, sion is to be paid to an agent, resulted as a remote or casual consequence There is a sufficient demand to support the payment, and the transaction was a from the intervention of the party who is suing; it must be proved that the fair and honest one between the parties.
lean was effected by means of the plaintiff's agency or by means of some subMr. REGISTRAR BROUGHAM, after referring to the evidence, said the argu. I agent of his, and if all that appears is that the party to whom he introduced the ment for tbe respondents amounted to this, that if a solicitor received from a subject of the loan declines the proposal but mentions it to a third party, who debtor about to file a liquidation petition the sum of £150, and the costs of of his own mere motion, knowing nothing of the plaintiff, advances the money, tbe liquidation petition came to less than that amount, the solicitor was then the commission is not due. In that case the defendants were engaged entitled to retain the balance towards payment of any costs wbich he might in getting up a company, and, requiring money to accomplish their object, claim from the debtor. But the evidence in this case showed that the money
they were introduced by the plaintiffs to the directors of a bank who, how. was paid, not for past expenses, but for a specific purpose-namely, payment ever, declined the proposal, and the money was obtained by the defendants of tbe costs of the liquidation--and he thought Mr. McLeod could only take from parties who had heard of the business through the bank, and it was said