Page images
PDF
EPUB

The Solicitors' Journal.

LONDON, JUNE 17. 1882.

Society, and amended after the meeting with the Associated ProCURRENT TOPICS.

vincial Law Societies, was before the tribunal in January last, but the draft order to be framed by the tribunal and submitted to the Council of the Incorporated Law Society has not yet been settled.

On a matter of so much importance, no one would grudge a THE TRIBUNAL appointed by the Solicitors' Remuneration Act

reasonable time for careful consideration, but nearly five months held a meeting on the 13th of May, and another meeting is

seems somewhat excessive. Having regard to the rumours which appointed for Saturday, the 17th inst., but no scale of remunera

have been current as to the difficulty standing in the way of a tion has yet been settled.

settlement, we have hitherto refrained from commenting on the matter. We venture to think, however, that the time has now come for urging the necessity for some conclusion being arrived at.

Practitioners are in this very unfair position, that while they are VICE-CHANCELLOR HALL continues to gain strength, but we

paid on the old system they are expected to prepare their docuregret to learn that the improvement in his condition as regards

ments on the new system. It is very much to be hoped that power of speech and movement is not as yet very substantial.

something definite will result from the deliberation of the tribunal

at its forthcoming meeting. WE ARE GLAD to hear that the festival of the Solicitors' Benevolent Association on Wednesday was the most successful which has yet been held, the proceeds in life and annual

SIR HARDINGE GIFFARD's Bill to amend the Judicature Acts subscriptions and general donations amounting to no less than

appears to have been practically rejected on Monday, a motion £936 8s.

by Mr. Pugh to leave out the words “ or rule of court" being carried by a small majority. The Bill provides that “no Order in

Council or rule of court required by the Supreme Court of JudicaMR. JUSTICE North has, at the request of the Lord Chan- ture Acts, 1873 and 1875, to be laid before each House of Parliacellor, undertaken the business of Mr. Justice Kay, while the ment shall come into operation until the expiration of forty days latter learned judge is occupied in hearing the causes and matters next after it has been so laid before each House of Parliament." transferred to him from Vice-Chancellor HALL by the order which | As no Order in Council is necessary to enable the Committee of we printed last week.

Judges to make rules of court under the power in section 17 of the
Appellate Jurisdiction Act, the effect of the alteration is to leave

matters in this respect exactly as they are now. We confess we THE STATEMENT furnished to us of the recent observations of are at a loss to understand the objection to Sir H. GIFFARD's Mr. Justice CHITTY on the privilege of Queen's Counsel on motion proposal. The notion of the Attorney-General, that “the attempt days, was not quite accurate. The rule as stated by his lordship to pass the clause was offering an insult to the judges,” was was, “ Thąt any member of the inner bar coming in after his turn,

sufficiently refuted by Sir H. GIFFARD's statement that he had but before the motions had left the inner bar, was entitled, not

reason to believe that a majority of the judges were in favour of withstanding, to move." This rule was laid down by the learned

the Bill as it stood. It is, indeed, difficult to see how the Judges judge after consultation with the Master of the Rolls.

could reasonably object to the proposal that rules of court, instead of coming into operation at once, should be laid upon the table

of the House for forty days before coming into operation. It is THERE CAN BE NO DOUBT that the Council of the Incorporated

quite certain that Parliament would not interfere with rules of Law Society acted wisely in submitting to the members the ques

merely professional interest or relating to technical matters of

pleading, and it is surely right that it should have an opportunity tion whether the decision of the Court of Appeal in the actions

S of vetoing proposed changes of general importance which may against the two firms of law stationers should be carried to the House of Lords; and we think that the result arrived at by the

be devised by “any three” out of the committee of seven judges. meeting will be generally approved. Whether the decision was or was not satisfactory, it related to a matter of so much importance to the profession that it is desirable to have the law on the subject IT IS A SATISFACTION to pass from the incautious letter of the laid down by the highest tribunal. When that has been done, the Home Secretary, and the indistinct and vacillating utterances of time will come for considering what legislative or other provisions the Lord Chief Justice, to the firm legal ground afforded us by the may be necessary for meeting the convenience of country solicitors, I decision of FIELD and CAVE, JJ., in the case of Beatty v. and protecting the profession from the inroads of unqualified Gillbanks. Stated shortly, the case was this :-The members of a practitioners. No one who reads the statements made at the religious body, called the Salvation Army, proposed to march, meeting can doubt that the law stationers are rapidly widening the according to their custom, through the streets of Weston-supersphere of their operations and trenching largely on the functions Mare, for a purpose and in a manner which were lawful, unless of solicitors. Their intervention may be convenient and inex- what was otherwise lawful was rendered not so by the unlawful pensive to some practitioners, but the fact must not be lost purpose of another body, called the Skeleton Army, to make it the sight of that it is not a long step from the employment of unqualified occasion of obstructing, insulting, assaulting, and raising a riot persons by solicitors to transact certain kinds of legal business to against them. The Salvation Army, notwithstanding they were their employment in similar matters by clients.

aware of the lawless designs of their opponents, proceeded peaceably to execute their purpose, relying on the protection

of the law and its officers. Thereupon the magistrates, instead THE CORRESPONDENCE we print this week on the subject of the of binding over the members of the Skeleton Army to keep the delay in the promulgation of the scale for conveyancing remunera- | peace, put the legal fetter on the wrists of the Salvation tion represents only a tithe of the private communications which Army. But, as Cave, J., pertinently observed, the law in this have reached us on the subject during the last few weeks. The country has not yet gone the length of forbidding a shopman draft order prepared by the Council of the Incorporated Law | to exhibit in his windows rich wares, which may prove too strong

for the self-restraint of a burglar. The business of the law and by PARKE, B., who expressed his disapprobation of the deits officers is to protect peaceable citizens against violence in the cision of JERVIS, C.J., and MAULE, J., in Fisher v. Ronalds (12 exercise of their legal rights; not to interpose its authority in C. B. 762), to the effect that the witness may exercise his own favour of the law breakers, and to buy off their lawless violence by discretion, and may decide for himself whether the question will accomplishing their unlawful object for them. This sound or will not criminate him. In Reg. v. Boyes (9 W. R. 690, 1 decision will, it may be hoped, prove useful in restoring the B. & S. 311), the Court of Queen's Bench held that the privilege authority of the law, and bracing up the nerves of magis- | can only be allowed where the court is satisfied that a compulsory trates, both paid and unpaid ; who throughout this business have, answer will occasion any real danger to the witness, although for the most part, cut a very sorry figure. To do an act in itself | COCKBURN, C.J., pointed out that, if there is any indication of such lawful, merely for the purpose of provoking another to commit a danger, great latitude should be given to the witness in indicating breach of peace, perhaps under some circumstances may be un- the effect of the question. This decision was approved and fol. lawful. But magistrates will no doubt for the future accept it as lowed by the Court of Appeal in In re Reynolds. It may be ques. law, that, to make an act unlawful, it is not enough to show tioned whether it would be not in accordance with convenience and that the act, lawful in itself, is likely to provoke a lawless one, common sense to abolish the privilege in question, while protecting nor even to show that the doer of the lawful act knows that a witness against any criminal proceedings as the result of his such will be the consequence.

disclosures. Both these objects have been attained by the Indian Legislature, for section 132 of the Indian Evidence Act provides

that “a witness shall not be excused from answering any question THE ARMY (ANNUAL) ACT, 1882 (45 Vict. c. 7), one of the as to any matter relevant to the matter in issue in any suit or in nine statutes which Parliament has succeeded in passing this any civil or criminal proceeding, upon the ground that the answer session, contains two very remarkable sections. The 4th section, to such question will criminate, or may tend, directly or indirectly. after reciting that “the 'misprints hereinafter mentioned occur in to criminate, such witness, . . . provided that no such answer the Army Act, 1881, and it is expedient to amend the same," sets, which a witness shall be compelled to give shall subject him to out no less than six cases in which certain words are to be “ sub

any arrest or prosecution, or be proved against him in any criminal stituted” for certain other words occurring in different sections of

proceeding, except a prosecution for giving false evidence by such that Act. The propriety of the amendments may be indisputable, lanswer.” but it is difficult to see how the word “misprint" can have come to be used. For instance, sub-section 2 of the 4th section enacts that “ in section eighty-seven of the Army Act, 1881, the words

THE STEPS in the curious case of Smitherman v. South-Eastern 'a proclamation in pursuance of the enactments relating to the

Railway Company, which has been the subject of such protracted calling out of the reserve on permanent service' shall be sub

litigation, and came before the Court of Appeal on Thursday last, stituted for a proclamation in pursuance of this Act' in the first appear to be as follows. The plaintiff was the widow of a man sub-section.” This amendment was surely suggested by an who, in attempting to cross the line at a station of the defendants', afterthought, and the words originally printed could not

had been killed by an engine which he mistook for the train for have been been “misprinted” in the ordinary sense of the term.

which he had taken his ticket. A bell had rung for the train, Misprints, in the proper sense of the term, are of course unavoid

but the deceased had been warned by a porter just as he was able, the two most salient instances of late years being perhaps |

about to jump off the platform. The first trial was before the printing of “that” for “ this" in section 11 of the Burial | BAGGALLAY, L.J., and a verdict was found for the plaintiff. This Act, 1880, which was solemnly corrected by the Burial and verdict a divisional court (POLLOCK and HUDDLESTON, BB.) set Registration Acts (Doubts Removal) Act, 1881, and the omission aside as against evidence. The Court of Appeal (COCKBURN, of " same” after “ the" in section 36. sub-section 4. of the C.J., and COTTON and THESIGER, L.JJ.) reversed this decision. Taxes Management Act, 1880-an omission which, though it | The House of Lords (Lord SELBORNE, C., and Lords PENZANCE makes the section « insensible.” is still uncorrected by Parlia- and BLACKBURN) reversed the decision of the Court of Appeal, ment. It is provided also by the 6th section of the Army Act and granted a new trial, on the ground that the question of conthat "in all copies of the Army Act, 1881, which may be tributory negligence on the part of the deceased had not been printed after the commencement of this Act, the words by this sufficiently put to the jury. On the second trial the jury found Act directed to be substituted for other words shall be printed / a verdict for the plaintiff, but added that they thought both therein in lieu of the latter words, and the words directed by this parties to have been greatly in fault. POLLOCK, B., construed

| this as a finding for the plaintiff, and entered judgment accordenactment, and might cause some confusion in the case of the ingly. A divisional court (MATHEW and CAVE, JJ.) refused a two rival copies of the Act of 1881 being used on the same rule for a new trial. The Court of Appeal (BRETT and COTTON, occasion. To make the enactment of real use, all the old copies L.JJ.) confirmed this ruling, but granted a rule to show cause should be “ called in ” like old threepenny pieces when new ones why judgment for the defendants should not be entered on the are issued. Even in such a case, however, no legal presumption

findings of the jury under ord. 40, r. 4. The Court of would arise that the Queen's Printer's copy was the correct one. | Appeal (COLERIDGE, C.J., and BRETT and COTTON, L.JJ.) have In the case of a local Act, no doubt, a Queen's Printer's copy is now pronounced for the plaintiff, being of opinion that the exevidence of the contents of an Act of Parliament, by 8 & 9 Vict. I pression of the jury that both parties were greatly to blame might c. 113, s. 3. But in the case of a public Act, the only mode of be disregarded as a comment, and was not to be imported into the authenticating the contents is a reference to the Parliament Roll finding. With this judgment it is, we think, impossible to dis(see Reg. y. Hastingfield Overseers, L. R. 9 Q. B. 209), in which. I agree, although it is not improbable that the House of Lords may however, clerical errors must occasionally occur (see Lude v. / again be asked to express an opinion on the case. Barnard, 1 M. & W. 115).

A CASE before the Court of Appeal last week again raised the Division, Queen's Bench Division, and the Probate, Divorce, and Admiralty

A collection of the official publications of the Court of Appeal, Chancer y question, which has been a good deal discussed of late, as to the Division, for Trinity Sittings, has b en issued by Mr. Scott, of No. 1, Warwick right to object to criminating questions. Before the decision of court, Holborn, containing the complete sittings papers and cause lists of all the court in In re Reynolds (30 W. R. 651), there was some con

these courts, with the Order of Court relating to Vice-Chancellor Hall's flict of authority upon the question whether an objection to

business, and constituting a convenient sized work for reference in office or

chambers, questions on the ground of their criminating tendency may be

On the 9th inst., in the Queen's Bench Division of the Irish High Court of taken by the witness himself, or whether he can claim the privilege Justice, addresses 'were presented from the Bar of Ireland and the Council of silence only by permission of the court. In Reg. v. Garbett | Incorporated Society of the Attorneys and Solicitors of Ireland to MI (1 Den, 236) it was held that the opinion of the court as to Justice Fitzgerald on the occasion of big retirement from the Queen's Bench, whether the answer might tend to criminate the witness was the

te having been promoted to be Lord Justice of Appeal in Ordinary " test upon which the privilege depended, and this view was taken the name of the bench, paid a bigh tribute of admiration to out:

| England, with a life peerage as Lord Fitzgerald. The Lord Chief Justice,"

ration to Mr. Justice in Osborn v. London Dock Company (3 W. R. 238, 10 Ex, 698) | Fitzgerald.

[ocr errors]

property which might be acquired by or devolve upon him would, THE DISCHARGE OF A DEBTOR IN of course, pass to the trustee by virtue of section 15, sub-section LIQUIDATION.

3, of the Act; but, upon the close taking place, that provision

would cease, and the debtor would then be entitled to retain any To the practitioner in bankruptcy there is probably no question such future-acquired property. But would the creditors have any which has created greater difficulty and uncertainty than that of | rights against such property for payment of the unpaid balances the discharge of a debtor under resolutions for liquidation by of their debts ? Rule 289 provides that “every creditor in arrangement of his affairs. A consideration of the sections and respect of a proveable debt shall, in the event of a liquidation by rules relating to the subject, and of some of the decisions which arrangement being resolved upon, be absolutely restrained from have been pronounced thereon, may be of interest and assistance commencing, or continuing, or enforcing any proceedings whatsoto our readers.

ever against the debtor or his property. .. unless the court One of the great principles upon which the Bankruptcy Act of shall be of opinion that such creditor's rights have been preju1869 proceeded was that no bankrupt should obtain a discharge dicially affected by the resolution, and that the estate would yield unless his estate paid 10s. in the pound to the creditors, or the a larger dividend if administered in bankruptcy.” It would appear, creditors passed a special resolution agreeing thereto. This pro- therefore, that, notwithstanding a liquidating debtor does not vision, with regard to bankruptcy proper, is contained in section receive a discharge, he, on the close of his liquidation, practically 48 of the Act, whilst section 54 defines the status of an undis- becomes discharged by reason of that rule, for such must be the charged bankrupt to the effect that no debt proveable under the effect of the creditors being absolutely restrained from taking or bankruptcy shall be enforced against the property of the bank- continuing any proceedings against their debtor or his property. rupt until three years from the close of his bankruptcy, and if in the If we are right in this proposition it may relieve the minds of meantime he make up the dividend to his creditors to 10s. in the some debtors whose creditors have capriciously refused to grant pound, he shall be entitled to a discharge " in the same manner as them their discharge. If, however, we are wrong in our concluif a dividend of 10s. in the pound had originally been paid out sion, and it should be held that rule 289 only applies during the of his property,” but if otherwise, then, on the expiration of the continuance of the liquidation, then, indeed, the position of an three years, the balance of the debts owing may be enforced in undischarged debtor is truly deplorable, for he will have been manner therein provided. The question has often been asked, Do divested of all his property, to be distributed amongst his either of these sections apply to liquidation? Section 125, sub-creditors, and still be liable to them for the unpaid balances of section 7, provides that, with the modification thereinafter their debts. mentioned, all the provisions of the Act shall, so far as the same. But, even if the proposition which we have advanced be correct, are applicable, apply to the case of a liquidation by arrangement, there is a wide difference between the position of a debtor who in the same manner as if the word “ bankrupt” included a has regularly obtained his discharge and one who has not, but debtor whose affairs are under liquidation, and the word whose liquidation has been closed; for a discharged debtor can " bankruptcy" included liquidation by arrangement. The and must plead his discharge in an action by any of his creditors : modification referred to is contained in sub-section 9 of the same Heather v. Webb (25 W. R. 253, L. R. 2 Č. P. D. i); Elmslie v. section, which provides that the provisions of that Act with Corrie (27 W. R. 279, L. R. 4 Q. B. 295); Wadsworth v. Pickles, respect to the close of bankruptcy, discharge of a bankrupt, (28 W. R. 628); Ex parte Hemming, Re Chatterton (28 W. R. the release of the trustee, and the audit of accounts by 218, L. R. 13 Ch. D. 163). But an undischarged debtor has no the comptroller shall not apply in the case of a debtor defence which he can plead. In Ex parte Hemming the applicawhose affairs are under liquidation by arrangement; but the tion was to restrain a creditor, who alleged that his debt had been close of the liquidation may be fixed, and the discharge of the incurred by fraud, from proceeding with an action against the debtor and the release of the trustee may be granted by a special debtor after the latter had obtained his discharge, but before the resolution of the creditors in general meeting, and the accounts may close of the liquidation, and the Court of Appeal declined to do so, be audited, in pursuance of such resolution, at such time and in assuming, for the purposes of the decision, that the debt had been such manner and upon such terms and conditions as the creditors incurred by fraud, but leaving the question whether it had or think fit. The rule in liquidation which regulates the discharge had not been so incurred—and, consequently, whether the discharge of a debtor is rule 302, which provides that “where liquida- was an answer or not-to be disposed of in the action. But tion by arrangement, and not in bankruptcy, has been resolved on, suppose the position of the matter to have been that the liquidathe creditors may, at the same meeting at which such resolution | tion had been closed, but the debtor had not obtained his discharge is passed, resolve whether the debtor's discharge shall be granted, when the creditor commenced his action against him. In that either forthwith or at a date to be specified in the resolution, or case the debtor would have no defence to such an action, whether subject to any and what conditions. In default of any resolution the debt was incurred by fraud or not, so that his only remedy being then come to as to the debtor's discharge, a general meeting would be to apply under rule 289 to restrain the creditor from shall be summoned for the purpose of considering the grant proceeding with his action. Would the court in that case try the thereof, either when the trustee shall see fit, or when the com- question of fraud in an application to restrain ? If our proposition mittee of inspection (if any), or when the debtor, with the con- be correct, we conceive that the court would have no alternative but currence of one-fourth in value of his creditors, who have proved, to do so in order to give effect to rule 289; for if the debt were shall require the trustee to summon the same." It is clear, there- not incurred by fraud, the action should not be allowed to proceed, fore, that section 48 does not in any way apply to liquidation; and if it were incurred by fraud, of course the creditor should but is it equally clear that section 54 is also excluded from such not be placed in a worse position by his debtor not having application? We confess to having had, for some time, very obtained a discharge than if he had obtained one. If the court, considerable doubt upon this point; but, in the absence of any under the rule, simply restrained all creditors from proceeding, a direct authority upon the point, we have formed the opinion debtor who had contracted debts by fraud or breach of trust, and that it is. The obvious reference to section 48 in the words of who did not obtain his discharge, would, after the close of his section 54 above quoted convince us that this is the proper con- liquidation, absolutely be better off than if he had obtained it. struction to place upon the section, and although the protection of This would be an anomaly which, we think, the court would never the property of a bankrupt for three years after the close of the allow, so that it would be necessary for the court to try the quesbankruptcy might not, if it stood alone, come within any of the tion of fraud in order to determine whether the creditor should exceptions contained in sub-section 9 of section 125, the subse- be restrained or not. quent provisions as to discharge in case the dividend be made up But if the close of a liquidation has the effect which we have to 10s. in the pound, would, we think, have to be construed in argued of practically discharging a debtor, the creditors, by never conjunction there with, and so bring the whole provisions of that closing the liquidation or giving the debtor his discharge (and section within the exceptions mentioned.

there seems to be no provision to compel them to do so at any But, if the conclusion which we have arrived at be correct, time), can for ever keep the future property of their debtor liable what is the status of an undischarged liquidating debtor after the until they have been paid the full amount of their debts, with close of the liquidation ? Until the close of the liquidation any interest In bankruptcy a trustee is required, by section 47, after

he has realized the estate, to make a report to the court and apply | Honourable Board that they were fully justified in doing). And, inasfor an order to close the bankruptcy, and the Comptroller in much as, by the old turnpike law, milestones and direction posts were Bankruptcy, in the exercise of his office, sees that this is done in | to be maintained in repair (with penalties in case of default), the justices due course, so that a bankruptcy cannot be kept open for ever.

in quarter sessions assembled, as before mentioned, made the following

| rule :-“ Milestones, direction posts, and posts indicating the boundaries In liquidation, however, a debtor appears to be entirely at the

of highway areas, are to be provided, kept in repair, painted periodically, mercy of his creditors, and his position, where his creditors

and legibly lettered." are hostile, may be very much worse than if his affairs The importance of this regulation to the public convenience is obvious ; had gone into bankruptcy. The effect of this was well for now that turnpike gates are removed, and the traveller is thereby demonstrated in the case of Ex parte Greener, Re Wain deprived of information which the toll-taker could have afforded, it is wright (30 W. R. 125). In that case the affairs of the debtor | more than ever important to the publio safety and convenience that mile. went into liquidation in 1877, and the trustee, with the stones and direction posts should be kept in repair. approval of the court and on a resolution of the creditors,

Mr. Chamberlin, the poor law auditor of the district, has, however, purchased the whole of the estate of the debtor for a sum sufficient

taken upon himself to say that the county authority has, in fact, no

power to make this regulation; that the painting of milestones is no part to pay 5s. In the pound to the creditors and the costs, but no of the repairs of a road, and has (as auditor) disallowed the sum incurred resolution for the close of the liquidation or discharge of the in a highway district for painting milestones. debtor was passed. The debtor, however, supposing the effect of And not only so, the same official has decided that the cost of removal the arrangement for the purchase of his estate by the trustee to of snow obstructing a road, cannot be charged under the head of repairs be to free him from his liabilities, commenced a fresh business, and against the county, aconired therein stock-in-trade which the trustee in 1881 seized as ! The justices of the county of Leicester have never given Mr. Chamber. property divisible amongst the creditors under the liquidation in

dation in lin any reason to believe that they would resist payment for removal of

snow; on the contrary, they would have deemed the question too absurd 1877, and it was held that he was entitled to do so. The Master

for discussion ; but Mr. Chamberlin has, without any such expression of of the Rolls and Baggallay and Lush, L.JJ., in coming to this

opinion, taken upon himself to inform the Leicester Highway District conclusion, expressed their regret at the extreme hardship of the that he will refuse to sanction any claim against the county authority case, but the law was too clear for them to be influenced by this for the removal of snow from the main roads--in other words, that the consideration. If the case had been in bankruptcy, the trustee expense of making roads fit for the traffic of the public is to be borne would have been compelled to have got the bankruptcy closed, in by parishes without any contribution from the county, or the work left which case the debtor's future property would have been protected unde except as provided by the Act. The case was distinguished from

It is difficult to understand how Mr. Chamberlin could have arrived at

the conclusion that the cost of removal of snow, which is obstructing and that of Ex parte Tinker, Re France (22 W. R. 794, L. R. 9 Ch.

rotting a road, is not to be charged as repairs. 716), which was a case of a sale of the whole of the estate to the But it is not on the question whether milestones and direction posts debtor himself, and it was there held that it would be a breach of are to be maintained, or snow removed, that the justices appeal to your faith to allow the creditors to take from the debtor the property Honourable Board ; it is to ask whether it can be with your sanction which they had themselves sold to him, and that in effect such that a poor law auditor thus takes upon himself to set aside that authority sale operated as a discharge to the debtor.

which, by statute, is confided to the county authority. On the whole we consider the present law with regard to the

By the District Auditors Act, 1879, the Local Government Board may

from time to time assign to district auditors their duties, and the county position of a debtor in liquidation to be one of the most unsatis

magistrates respectfully ask of your Honourable Board whether you have factory provisions of the Act of 1869, and we shall on this account

assigned to Mr. Chamberlin any duties under which he claims to exeralone, if for no other reason, hail with pleasure an amendment of cise a control so vexatious and prejudicial; or by what right it is that the law which will entirely abolish liquidation proceedings for the he, whose business would seem to be the simple audit of accounts, takes future, even though ordinary bankruptcy be the only substitute upon himself to set aside, by his own proper authority, the united action therefor.

of the magistrates and highway boards of the county.

The county justices submit to your Honourable Board that this is a case for your interference on this their appeal, inasmuch as it may

happen that in future, with the fear of such expenses being disallowed, CORRESPONDENCE.

highway districts may suffer milestones and direction posts to go into

decay; and thus there will be no expenditure, the disallowance of which REPAIRS OF MILESTONES AND GUIDE.POSTS,

can be brought before your Honourable Board on appeal from the

auditor's disallowance, and the public service may suffer from the action [To the Editor of the Solicitors' Journal.]

of an officer whose interpretation of a statute is entirely at variance with Sir,—The full effect of the decision of the Local Government Board, that put upon it by the county justices. that the repairs of milestones and guide-posts are not part of those And the county justices assembled as aforesaid in quarter sess ions “ repairs" contemplated by the statute, and consequently, if done at all, submit this matter to your Honourable Board as one of urgent necessity, will be disallowed by the auditor, will not be apparent until winter time. I especially in prospect of the coming winter, and pray your attention may When, however, a few persons have perished for want of guidance on a be speedily called to this appeal, and your decision communicated as soon winter's night, the question, “Who is to blame ?” will come forward. | as possible. May I ask the favour of your printing the enclosed appeal from the Signed, on behalf of the justices in quarter sessions assembled, county justices of Leicestershire, which was sent to the Local Government

November 19, 1881.

ARCHDALE R. PALMER, Chairman.] Board last year. It may possibly alter your view as to the law as it atands, and, if not, will certainly confirm your view of what it should be.

W. NAPIER RBeve, Clerk of the Peace. Leicester, June 13.

CONVEYANCING SCALE OF COSTS. (The following is the document referred to :

[To the Editor of the Solicitors' Journal.] To the Right Honourable the President and the other Members of Sir,-Do you know how this matter stands, and how and where the the Local Government Board :

delay is in its not being settled ? Meanwhile, here is nearly half the The justices of the peace of the county of Leicester, in quarter sessions year gone, and we are working quite in the dark as to the proper costs to assembled, make the following appeal:

charge in conveyancing matters. At this instant I have before me a By the Highway Act, 1878 (section 10), power is given to county | draft conveyance sent me for perusal of less than five folios ; what am I authorities to enforce performance of duty by defaulting highway authority, to charge-18. 8d. (the third of 5s. for a skin of fifteen folios) for perusal, and, by the 13th section of the same Act, & contribution towards the and 1s. 8d. for a fair copy at 4d., together 3s. 4d., or what? expense of main roads is to be made from the county rate on a certificate I hear that at the meeting of the Provincial Law Societies held last week, of the county surveyor, or such other person or persons as the county it was stated there was a “screw loose " amongst the body who have the authority may appoint, that such main road has been maintained to his duty, under the Act, of forming the scale. I hope it is not so, or we or their satisfaction.

shall have nothing done before the Long Vacation.

LEX The justices submit to your Honcurable Board that the effect of this June 13. enactment is to place the ultimate responsibility of the due maintenance of highways and main roads on the county authority. The justices of this county, in conference with the chairman and

[To the Editor of the Solicitors' Journal.] members of the Leicester Highway District, agreed upon certain regula. Sir,- Week after week I turn to the SOLICITORS' JOURNAL, hoping to tions for the satisfactory maintenance of the main roads throughout the see that a General Order has been made under the Solicitors' Remunera. county, in the interest of the public generally (as they submit to your tion Act of last session, and I look in vain; the delay in bringing out the order appears to me to be most vexatious and unnecessary. Solicitors the statement of the consideration for a bill of sale. There was also a question are expected to adopt the new system of conveyancing, and yet their whether a parol agreement between the grantors and the grantee amounted to charges are in the old style; this is not fair to the profession. Is the

a “defeazance or condition” within the meaning of sub-section 3 of section Incorporated Law Societylpowerless to help us !

10 of the Bills of Sale Act, 1878, so that it ought to have been registered with

the bill of sale, and there was a third question whether the occupation of the A COUNTRY SOLICITOR.

grantors bad been untruly described in the affidavit made on the registration, The bill of sale was made by a father and a son in favour of a money-lender. The grantors were described in the deed, and also in the affidavit filed on the

registration, by their true address, and they were stated to be " both mantle CASES OF THE WEEK.

manufacturers, carryiog on business together" at the address already

mentioned, under a specified firm. The deed contained a recital that the COMPOSITION RESOLUTIONS-REGISTRATION-DEBTOR WITH NO ASSETS

grantors bad applied to the grantee for an advance of £242, which he had

agreed to make upon their agreeing to pay the sum of £100 by way of interest TRIVIAL COMPOSITION-ABUSE OF PROCEDURE OP COURT-BANKRUPTCY

and bonus, and upon having the repayment of the advance, and the paymont Act, 1869, s. 126-BANKRUPTCY RULES, 1870, R. 295.-In a case of Ex parte

of the bonus and interest, secured in manner thereinafter expressed. And Balí, before the Court of Appeal on the 8th inst., a question arose as to

the grantors, in consideration of the sum of $242, by the grantee paid to them the registration of composition resolutions. A debtor bad filed a liquidation petition, and by bis statement of affairs, produced at the first meeting of his

at or before the execution of the deed, assigned absolutely to the grantee all

the furniture, stock-in-trade, and other chattels belonging to them in the creditors, it appeared that he had liabilities amounting to £1,293, and that

premises by the address of which they were described, subject to redemption he had no assets. Questions were put to bim by some of the creditors, and he

on payment of £342 in certain specified instalments. The bill of sale was admitted that he was in the receipt of a salary of £5 per week. The creditors

executed in November, 1880, and in August, 1881, the father filed a liquida. by the proper statutory majority, resolved to accept a composition of sixpence

tion petition. The trustee in the liquidation sought to bave the deed declared in the pound, payable within a month after the registration of tbe resolu. void against him on several grounds :-(1) That the consideration was not truly tions, and to be secured to the satisfaction of the chairman of the meeting. The

stated. The trustee alleged that when the deed was executed there was & resolutions were confirmed at the second meeting and were registered. Some

e registered. Some parol agreement between the grantors and the grantee that it should not be dissentient creditors applied to the court to rescind the registration, and registered, and that in consideration of this agreement the grantors agreed to their application was refused by Mr. Registrar Hazlitt, acting as Chief pay the grantee a larger gum by way of bonus and interest than he would Judge. He thought that he was jastified in 80 deciding by Ex parte otherwise bave charged for the advance. This parol agreement, it was said, Elworthy (23 W. R. 790, L. R. 20 Eq. 742), in whiob, under a liquidation was part of the consideration for the bill of sale, and ought, therefore, to have petition filed by a debtor, who stated that his debts amounted to £130, and been stated in it. (2) It was urged that, if the parol agreement was not part that his assets were £7, the creditors present at the meetings onanimously of the consideration for the deed, it was, within the meaning of sub-section 3 resolved to accept a composition of threepence in the poond. Nocreditor opposed of section 10 of the Bills of Sale Act, 1878, & “ defeazance or condition" the registration, but the registrar of the county court refused to register not contained in the body of the bill of sale, and that it ought, therefore, to the resolutions, or the ground that there were no available assets for dis- have been set forth in the copy filed on the registration as part thereof. It tribution among the creditors, and the judge of the county court was contended that it was in effect, a “defeazance or condition," making the affirmed his decision. Bacon, C.J., however, held (there still being no bill of sale void as against a trustee in bankruptcy or an execution creditor opposition) that, as all the requirements of the Act and the Rules had been of the grantors. (3) It appeared that the father and the son had formerly complied with, the resolutions ought to be registered. In Ex parte Ball the carried on business in partnership together, but that at the date of the Court of Appeal (JESSEL, M.R., and LINDLEY and BOWEN, L.JJ.) held execution of the bill of sale the partnership had been dissolved, and the that tbe registration ought to be rescinded. JESSEL, M.R., described the business was being carried on by the father alone, the son acting as his proceedings as an abnge of the procedure of the coort, and LINDLEY, L.J., | clerk or agent. The goods comprised in the deed were the property of the said that they were a scandal. And JESSEL, M.R., expressed his approval father alone. The Court of Appeal (JESSEL, M.R., and LINDLEY and BOWEN, of what was said by Bacon, C.J., in Ex parte Staff (23 W. R. 950, L. R. 20 L.JJ.) overruled the objections, and held that the bill of sale was valid. Eq. 775). In that case the statement of a liquidating debtor showed that JESSEL, M. R., said that the Act was, of course, intended to provide that his debts amounted to £540, and that his "assets were only £32. The reasonable information should be given to those who dealt with persons who creditors resolved on a liquidation by arraogement, and granted the debtor had given bills of sale, but it must not be made a mere trap for those who an immediate discharge. One creditor opposed the registration, and the lent money on the security of bills of sale. It was the duty of the judge registrar refused to register the resolutions, on the ground that there were to construe the Act fairly, but, on the other hand, he must not adopt a practically do assets for distribution among the creditors. Bacon, C.J., literal construction where it would lead to a manifest absurdity. The affirmed this decision. He said that nothing was better settled than that agreement not to register the bill of sale was a collateral agreement. The the Court of Bankruptcy would not allow its procedure to be made ose of consideration for the bill of sale was the £242 which the grantors got for for iniquitous or merely idle parposes. The machinery of the court ought giving it. The motive for paying the additional bonus was not part not to be employed in a case where £32 was all that the debtor had to hand of the consideration for the deed. The agreement to pay it was over to his creditors to satisfy debts amounting to £540. The petition was a mere collateral agreement. If it had been mentioned at all in & mero abase of the procedure in bankruptoy. JESSEL, M.R., said that these

the deed it must have been inserted as a covenant to pay the observations applied exactly to Ex parte Ball.-SOLICITORS, Barnard f Co. ;

additional bonus, and it might as well be argued that every covenant in the S. Chapman.

deed was part of the consideration for it. Was the parol agreement then'. “ defeazance" ? A defeazance was something which defeated a deed, and

was contained in another document. If it was contained in the deed itself it ILLEGAL CONTRACI-CAUSE OF ACTION-AGREEMENT BY WAY OF GAM

was & condition. In the present case the agreement was not contained in any ING OR WAGERING-AGENT EMPLOYED TO BET-8 & 9 VICT. C. 109, s. 18.

other document; it was a mere parol agreement. A condition was something -In a case of Lynch v. Godwin, before the Court of Appeal on the 10th

contained in a deed which defeated or qualified an estate given by it. The ins!,, the question arose whether the employment of an agent to make a bet

agreement in the present case was not intended to defeat or qualify the estate on a horse-race was illegal, so that tbe agent could not recover from the prin.

as against the grantors. It was intended for the protection of the borrowers' cipal the amount of the bet which he had had to pay. The action was brought

credit, not for the protection of their creditors. It was an incident of the Act to recover the sum of £40 paid by the plaintiff for the defendant on a betting

that it would, in certain events, defeat the bill of sale. It would have been transaction. In 1878 the defendant instruoted the plaintiff to bet £40 upon a

entirely contrary to the intention of the parties to insert it in the bill of sale. horse called Vril for the Ascot Stakes. The plaintiff made the bet with one

The agreement was a collateral one, and was not within the plain words of the Onley in the presence of the defendant. In the result the horse did not win the

Act or their fair meaning. Then it was said that the son was not properly race, and the plaintiff paid Opley the £40. The defendant declined to repay

described as a mantle manufacturer. The first question was whether it was a the plaintiff the £40, and he raised the defence that the transaction was null

material misdescription. The father was the liquidating debtor, and the deed and void under 8 & 9 Vict. c. 109, s. 18, as being an agreement by way of

must be void (if at all) as against bis trustee. It was the father who really gaming or wagering in respect of which no action could be brought or main

gave the bill of sale. The son joined in the deed, but the property did not tained. Lord Coleridge, C.J., before whom the action was tried without a jury,

belong to him, and he had nothing to give. The Act meant that the bill of gave judgment for the plaintiff, holding that, although a bet or contract by

sale must be registered quoad the person whose credit would be affected. The way of wagering between principals was a null and void contract, the statute

joinder of a person who had no interest, and who had nothing to assigo, was did not render void transactions arising out of the wager. The Court of Ap

mere surplusage. Then it was said that the description of tho father was not peal (JESSEL, M.R., and LINDLEY and Bowen, L.JJ.) affirmed the decision.

accurate, because he was described as a partner with his son. Bat all that the JESSEL, M.R., said that the employment of an agent to bet was not in itself

Act required to be stated was the residence and occupation of the giver of the illegal, and a bet was void but not illegal. If you employed an agent to make

bill of sale. Was the occupation of the father the less truly described because a bet for you, you knew he must pay or be subject to very unpleasant conse

the deed went on to say that he was in partnership with the son ? His lord. quences. If you did not withdraw your request it must continue, and if he bet

ship thought not. These words were mere surplusage. They were not in any at your request be paid at your request, and you were liable for the money so

way misleading. If they were, it might be necessary to consider whether they paid. The judgment was quite right. LINDLEY, L.J., said that a request to

could in any way cut down the previous description. His lordship thought pay the bet, if lost, was implied in the request to bet. Bowen, L.J., concurred.

that the father's occupation was sufficiently described, and that it would be --SOLICITORS, E. W. Owles ; Evans, Manchester.

straining the Act to hold that the additional words rendered the description untrue. LINDLEY, L.J., said that £242 was the sum advanced by the grantee to the grantors, and that sum in ordinary parlance was called, and was rightly

called, the consideration for the deed. It would be straining the words of the BILL OF SALE-REOISTRATION-STATEMENT OF CONSIDERATION—"DE-Act to say that the parol agreement was part of the consideration. It was FEAZANCE OR CONDITION"-AFFIDAVIT ON REGISTRATION-MISDESCRIPTION part of the bargain which resulted in the consideration, but not part of the OP GRANTOR-BILLS OP SALE ACT, 1878, ss. 8, 10,- In a case of Ex parte consideration itself. It was obviously not a defeazance. Nor was it a condi. Popplewell, before the Court of Appeal on the 8th iost., a question arose as to Ition, The Act did not require that a bill of sale should state every part of

« PreviousContinue »