« PreviousContinue »
of a very trivial character. We venture to submit that the is the importance of inserting in the sub-lease an express covenant distinction between damage by user and damage by execution by the sub-lessee to observe and perform all the covenants in the of the works is shadowy and unsatisfactory ; but at the same head lease, except the covenant for payment of rent. The result of time it must be granted that it is too well established to be the recent decision will, probably, be to render less common the overthrown by any power but that of the Legislature. The expres- practice of setting out in a sub-lease covenants copied from sion “injury to land” would seem to be primarily confined to some those in the original lease. There can be no doubt that a covendirect and immediate damage to the physical condition of the land ; ant by the sub-lessee to observe and perform all the covenants but this meaning is enlarged under the Railway Acts so as to include and provisions on the part of the lessee contained in the head lease the depreciation which results from the execution of works in the is equally effectual, and it is, of course, a great deal less cumbrous neighbourhood. This can only be effected by interference with the than the former practice. The reason why this course has not uses to which the land is put by the occupier; and it seems to be been more frequently adopted is probably that, as the sub-lessee settled that the only subject of compensation is the existing use to must necessarily have a certified copy of the original lease, the which the land is put, without any reference to its future capabilities. saving in cost is not very great. There is now, however, the Thus Walker's trustees in the recent case were fortunate enough ad:litional reason for requiring the under-lease to be in this form to get compensation because they had a manufactory in full work ; that (if the two judges of the Court of Appeal are right) the if it had been in process of erection their claim would have failed. mesne landlord will thereby obtain the right to be indemnified There is considerable difficulty, no doubt, in furnishing a proper against the costs of reasonably defending actions on the covenants test of damage in such cases; but we should be glad to see some of the head lease. When the Solicitors Remuneration Act has more practical course adopted than that of making the right to com come into full operation we shall probably find sub-leases reduced pensation depend upon the success of a supposititious action. We to much more reasonable dimensions. shall conclude by statingoue furtheranomaly in the law of compensa | The course to be pursued by the mesne landlord, when protion, which is closely connected with the subject under discussion. ceedings are taken against him by the head landlord for breach It is this. If a shop, hotel, manufactory, &c., is actually taken by of covenant, has now become clearly marked out. If the subthe company, they have to pay for it as a going concern-in lease contains a covenant by the sub-lessee to observe and other words, its custom or trade is part of the subject-matter of perform the covenants in the head lease, the mesne landlord will compensation. But the traffic may be diverted, the custom of the be entitled to recover the costs of reasonably defending the action house destroyed, and its goodwill rendered valueless without any by the head landlord. In order to insure that the action is compensation being payable. Let us put a hypothetical case in reasonably defended, the mesne landlord should, before taking any illustration of this last distinction. A public-house stands close steps, give notice to the sub-lessee of the claim of the head to a manufactory, and derives its entire revenue from the custom landlord, and allow him the opportunity of defending. “If,” said of the operatives. If the line runs through the manufactory Lord Justice Brett in the recent case,“ the mesne landlord has without actually touching the public-house, although the value of given the sub-lessee notice of the claim against him, and given the latter is reduced to nil, it will not be “injuriously affected,” | him an opportunity of defending if he choose ; if, then, the third whereas if it is itself required to be “ taken for the purposes of the party will do nothing, the mesne landlord has reason to defend the undertaking,” the company must pay the capitalized value of its case.” Since the mesne landlord has usually himself no knowledge annual profits.
whether breaches of covenant have or have not been committed, it is for the sub-lessee to tell him whether he may or may not safely defend (see Rolph v. Carrick, 16 W. R. 252). If
the sub-lessee says, “ Do not defend"; of course, the mesne landTHE INDEMNITIES OF A MESNE LAND
| lord obeys. If the sub-lessee omits to give any directions, and the
mesne landlord proceeds bona fide to defend the action, he will, LORD.
it seems, be presumed to have acted reasonably. At all events, he II.
may, unless expressly forbidden by the sub-lessee, incur the We pointed out last week the difference in the state of facts which expense of investigating the head landlord's claim (see Blyth ". exists between the recent case of Hornby v. Cardwell (30 W. R. Smith, 5 M. & Gr. 405). 263) and the earlier cases in which it was held that there was no contract of indemnity by the sub-lessee. In the earlier cases there was only a contract by the sub-lessee to perform a set of covenants identical in terms with those of the head lease; in the recent case
REVIEWS. the house was let “subject in all respects to the terms of the existing lease and the covenants and stipulations contained
DANIELL'S CHANCERY PRACTICE. therein.” According to Lords Justices Brett and Cotton there is
THE PRACTICE OF THE CHANCERY DivisiON OF The High COURT OF to be implied from these words a contract by the sub-lessee to
JUSTICE AND ON APPEAL THEREFROM, BEING THE Sixth EDITION OF indemnify the mesne landlord. “The question is,” said Lord
Daniell's ChanCERY PRACTICE, &c. By LEONARD Field, EDWARD Justice Brett, “ whether the mesne landlord can recover the costs
CLENNELL Dunn, and THEODORE Ribton, Barristers-at-Law, assisted
hy William HENRY UPJohn, Barrister-at-Law. Vol. I. Stevens & of defending the first action. That depends, first of all, upon
Sons, whether he could recover these costs unless in the contract between
This new edition of the standard Chancery Practice will be generally him and the third party there was to be implied a contract of
| welcomed, and we are glad that we can speak favourably of the indemnity, and I think he could not. Can such a contract be manner in which the editors have accomplished their difficult task of inferred ? It seems to me that, upon a proper construction of the deciding what parts of the old work should be rejected, and of adapting sub-lease, there was a contract by the third party to fulfil, as the parts retained to the new practice. There is to be found, in every between him and the defendant, the covenants which the defend- part of the book we have examined, evidence of great care; the cases are ant was bound to fulfil as between him and the plaintiff.” The
not merely jotted down, but analysed and considered, and no pains result is that where a sub-lessee has covenanted or agreed to
appear to have been spared to render the information given both accurate observe and perform all the covenants in
ard complete. This is high praise, but we think it is fully warranted by the bead lease,
se, the result of our examination of the work. costs incurred by the mesne landlord in reasonably defending
1 The present volume contains the practice relating to an action in the an action brought against him by the head landlord on the Chancery Division from its commencement down to enforcing in covenants of the head lease may be recovered by him against execution of judgments and orders. After a short introduction on th the sub-lessee. On the other hand, if Penley v. Watts (7 M. & constitution of the Supreme Court and a few words on the present and W. 661) is still law, where the sub-lessee has merely covenanted former modes of commencing a chancery action, we have chapters on the or agreed to observe and perform certain covenants which happen persons who may bring an action and the persons against whom au to be identical in terms with those in the head lease, there is no
action may be brought, followed by chapters on parties and proceeding implied contract of indemnity. The two decisions are thus
on the part of the plaintiff previous to the issue of the writ. The distinguishable, and may possibly both stand together.
us | various stages of an action are then taken up and dealt with in successive
chapters and sections of chapters. The first lesson which the recent case teaches to mesne landlords We may take as an example of the mode in which the new part on
book has been executed the section of Chapter IV. relating to parties April, 1879, in which month 56 tons 18cwt. were delivered. In May, 1879, by service of notice of relief. The arrangement of the matter is unexcep 21 tons 8owt. were delivered. At the plaintiff's request the further deliveries tionable. We have, first of all, the provision of ord. 16, r. 17; the general were again postponed. In September, 1879, 21 tons 19cwt. were delivered. scope of the provision is explained, and then the mode in which the notice is
Tbe whole quantity then delivered amounted to 167 tons 19cwt. The plainto be given by a defendant claiming contribution, and the cases to which
| tiff then wrote to the defendants that he should not require any further
delivery that montb, and in consequence of this no more iron was delivered the rule bas or has not been held to apply. Then we have the provision of rule
in Sepiember, 1879. The plaintiâ made no request for delivery in October or 19 of the order, as to notice by the plaintiff and the mode of application for
November, 1879, and none was delivered in either of these months. On leave to issue the notice, followed by the mode of appearance and defence
December 13, 1879, the plaintiff wrote to the defendants, asking for a supply by the person served, and, lastly, the course to be pursued when the person of iron without further delay, and on December 17 he repeated his request. served appears. The effect of the cases is given very tersely, and, so far as On December 19 the defendants replied :-“We beg to inform you that, as we have observed, all the cases of importance are noticed. This is a good | you refused or failed to take the iron within the time specified in contract, specimen of the execution of the book in general. It is exactly what it we have cancelled same, and we decline now to make further deliveries, exprofesses to be-a concise and careful digest of the practice. If the subse cept at current price." The market price of iron was then considerably higher quent volume is carried out with the ability and accuracy which charac than the contract price. Further correspondence took place, and ultimately terize the present volume, Daniell will undoubtedly retain the position it
this action was commenced in February, 1880. The plaintiff claimed £492 14s. has so long held. The value of the present volume is increased by a full
damages for breach of the contract by the defendants. The defendants and well-arranged index.
denied that they had committed any breach of the contract. On July 7, 1880, Lopes, J., ordered a special case to be stated for the opioion of the court. A case was then stated embodying the above facts, and the opinion of the court was asked (1) whether the contract was rescinded before any breach by the defendants, or whether the effect of the correspondence and circumstanoes
was only to extend the period for delivery under the contract; (2) whether CORRESPONDENCE.
the defendants had committed any breach of the contract ; and, if they had,
then (3) what damages the plaintiff was entitled to, and on what principle the ** A Justices' CLERK.—Next week.
damages should be assessed. If the court should be of opinion in favour of
the plaintiff, then judgment was to be entered for the plaintiff for such PAINTING AND LETTERING MILESTONES.
damages as the court should consider him entitled to, and for the costs of the
suit. If the court should be of a contrary opinion, then judgment was to be [To the Editor of the Solicitors' Journal.]
entered for the defendants, with costs. On the hearing of the special case, the Sir,-It appears to me that the justices of Leicestershire, and the very
Divisional Court (Manisty, J., and Warkia Williams, J.) ordered judgment able clerk of the peace of that county, are involving this matter in great
to be entered for the plaintiff, with costs, and that ihe damages should be
ascertained by the master. The plaintiff appealed, on the ground that the and unnecessary confusion. Surely the case is as clear as day. The auditor in auditing the highway accounts disallows certain expenses
court ought to have decided the question of damages itself, and pot to have
referred it to the master. The defendants appealed, on the ground that there incurred by the highway board in painting and lettering the milestones had been no breach of contract, and that judgment ought to have been entered upon a highway, and the question arises by what authority such an ex- for them. The Court of Appeal (Lord COLERIDGE, O.J., and LINDLEY and pense is incurred. Certainly not by virtue of any Act of Parliament, BOWEN, L,JJ.) affirmed the decision on the question of breacb. Lord COLEinasmuch as neither the Highway Act of 1835 por any other statutory RIDGE (who delivered the judgment of the court) said that the decision of the enactment gives any such power, the highway authorities being em. Court of Excbequer Chamber in Tyers v The Rosedale Iron Company (23 powered only to erect guide-posts where two or more ways meet; not
W. R. 871, L. R. 10 Ex. 195), practically concluded the present case. milestones at any and every point where a highway or other authority may
There was no difference in principle between the two cases ; there was only choose to imagine them to be desirable. But the county authorities
a slight difference in the facts, which did not at all affect the judgment of conceive that they have the right (any Act of Parliament or rule of law
the court. A judgment of the Exchequer Chamber was binding on the Court of to the contrary potwithstanding) to impose as a condition, vpon their
Appeal. The decision in that case was that when there was an extension of
the time for fulfilling a contract at the request of one of the parties to it, repaying half the cost of the repairs of the main roads out of the county
the county and that party afterwards insisted on the performance of the contract to the rate under the authority of the Act of 1878, that milestones shall be disadvantage of the otber party who had assented to the extension of time, erected and kept in repair. The rules and regulations made by the that other party was still bound by the contract as if it existed in its entirety. justices of Leicestershire in this respect are clearly ultrà vires, and go The defendants might have stipulated, when they assented to the extension beyond their powers altogether. Before the county authority can repay of time, that, in case the price of iron should rise, they would only deliver half the cost of the maintenance of the main roads two things must happen. at the market price; but, not having done this, they could not now take The accounts must be audited, and the roads must be maintained to the advantage of their own act of good nature, satisfaction of the county surveyor. The erection of milestones or the
A question also aroge as to the measure of damages. The court were of repairs of same cannot properly fall within any rules or regulations to opinion that the defendants would have been entitled to & reasonable time in be made by the county authority under the Highway and Locomotives which to deliver the remainder of the iron, and were disposed to think that a (Amendment) Act, 1878, inasmuch as such rules or regulations cannot
reasonable time would have been monthly deliveries as originally conrequire anything to be done which the highway authorities cannot them
templated, and, consequently, that the damages would be the sum of the selves do by virtue of some existing statutory enactment.
"o differences between the market price of iron, at the times at wbich the
monthly deliveries would have been respectively made, and the contract price. The clerk of the peace for the county of Leicester is apprehensive that But, as the parties agreed on a sum for damages, it became unnecessary to some wayfaring man may err for want of a guide-post. I have only to decide this point. remind him that as to guide-posts it is clear that, under section 24 of the And, as to the reference of the damages to the arbitrator, the court were Highway Act of 1835, it would be a dereliction of duty on the part of the of opinion that the Divisional Court had no power to send the question to highway authorities not to erect and maintain such.
him. Lord COLERIDGE, C.J., said that, tbe facts being fully set forth in the H. A. Ouston, Author of " Highway Law,” &c. special case, and the judgment of the court being asked as to the principle on Leicester, June 27.
which the damages should be assessed, the court could not discharge itself of the duty of deciding the principle.-SOLICITORS, Smiles & Co.; Dubois d Reid.
CASES OF THE WEEK.
PRACTICE-APPEAL-FINAL OR INTERLOCUTORY ORDER OR JUDGMENT-RE. FUSAL OF WRIT OF PROHIBITION-SECURITY FOR Costs_LOCAL BOARD-URD.
58, RR. 4, 15.-In a case of The Queen v. The Local Government Board, before CONTRACT FOR SALE OF Goods—MONTHLY DELIVERIES-POSTPONEMENT OF the Court of Appeal on the 21st ult., the question arose whether an appeal from DELIVERIES AT REQUEST OF PURCHASER-REFUSAL TO DELIVER—MEASURE an order of a divisional court discharging a rule nisi for a prohibition was an or DAMAGES-SPECIAL CASE-POWER OF COURT TO REFER TO MASTER, – appeal from an interlocutory or from a fioal order or judgment, and whether, In a case of Rose v. The Awsworth Iron Company, before the Court of Appeal therefore, the proper notice of appeal had been given. The court (JESSEL, on the 23rd ult., a question arose as to the effect, when a contract has been M.R., and LINDLEY, L.J.) beld that the order was interlocutory. JESSEL, entered into for the sale of goods to be delivered by instalments, of the postpone
M.R., said that there are only two classes of orders and judgments, final and bent of the delivery at the request of the purchaser. On August 3, 1878, interlocutory. All that are not fipal are interlocutory. Under the old praotice the defendants agreed to sell to the plaintiff 500 tons of pig iron, at the price the refusal of a writ of prohibition was not fipal, because the application might, of 22 10s. 6d. per tod, to be delivered at the rate of 100 tons per month, com like an application for a habeas corpus, be renewed before any court having mencing in Avgust, 1878. Sold and bought notes, signed by the parties jurisdiction in the matter, or before any judge. And now every judge of the respectively, were afterwards exchanged. At the request of the plaintiff the
exchanged. At the reanest of the plaintiff the High Court had the same jurisdiction. deliveries were postponed, and no delivery took place until November, 1878, | It was then asked that the appellants, a local board, might give security for when 22 tons 11cwt. were delivered. Other deliveries, amounting to 45 tons the costs of the appeal, on the ground that the Public Health Act, 1875, gave 3cwt., were made on the 13th and 14th of December, 1878. On December them no power to move in prohibition, and that they had no power to levy a 17, 1878, the plaintiff requested the defendants to suspend further deliveries rate to pay the costs of the appeal, and might be unable to pay them. The until he should write to them, and on December 30 he wrote to them that | court ordered security to be given.-SOLICITORS, Ingledew & Ince; Sharpe, he would write when he required a further delivery. In consequence of this Parkers, & Co. the defendants made no further delivery in December, 1878, or in January, 1879. At the further request of the plaintiff the deliveries were again postponed until DEEDS EXECUTED ON THE SAME DAY- PRIORITY OF OPERATION-DEBEN, TURES OF COMPAXY-PRIORITY-TRUSTEE–LIEN ON TRUST PROPERTY FOR r. 11, had been intended to apply under these circumstances, it would have COSTS AND EXPENSES— ASSIGNMENT OF PROPERTY TO CESTUI QUE TRUST.- contaicel a provision for the supplying of a defendant with copies of the deeds In a case of Gartside v. The Silkstone and Dodworth Coal and Iron Company, pleaded; as it was, the statement of defence did not admit that the before Fry, J., on the 27th olt., a question arose as to the priority of deben- deeds were of the purport and effect stated in the statement of claim. It was tures of a company which were all sealed on the same day. The directors had also submitted on behalf of a third mortgageo, who had been joined as defendpower to borrow money on the security of debenture bonds of the company, ant, and put in a statement of defence denying that there was anything due and on the 10th of February, 1875, they resolved that debenture bonds, dated to the plaintiffs, that, as his only admission was that nothing was owing, so the 1st of May, 1875, should be issued to meet expenditure on account of judgment against him could be made on thu motion; and, further, that if capital. The expenditure on account of capital amounted to £15,000, and an order was made against the defendants on the motion, no costs after three persons named Holden agreed to lend £10,000 on the security of deben-delivery of defence would be given to the plaintiffs, except costs of the tures of the company, and another person named Gartside agreed to lend motion : citing Brown v. Pearson (30 W. R. 436). The plaintiffs produced $5,000 on the same security. On the 27th of April, 1875, the geal of the com- in court the deeds pleaded. CHITTY, J., said that where, under the old pany was affixed to 100 debentures for £100 each, numbered respectively from practice, a cause was set down for hearing on bill and answer an affidavit was 501 to 600, in favour of the three Holdens, and to fifty debentures for £100 required if the bill did not plead the execution of the deeds. Here the each, numbered respectively from 601 to 650, in favour of Gartside. The seal execution of the deeds Lad been pleaded by the plaintiffs, and after the was affixed to the debentures in the order of their numbers, beginning with the admissions of the defendants contained in their non-denial of this fact all earliest number. On or before the 1st of May the moneys which the deben that could be required of the plaintiffs was the production of the deeds for tures were intended to secure were paid to the company, and on the 7th the purposes of identification. As to the questions raised by the other of May the debentures were delivered out to the persons entitled to them defendant, the usual order now made by a foreclosure decree was simply for respectively. Each of the debentures delivered to the three Holdens contained an account of what was due on the mortgage, including the costs of the the following proviso :-“ Provided that this debenture and all other deben action. The plaintiffs were, upon the pleadiogs, entitled to the ordioary tures of the company, to the amount of £10,000 (the amount intended to be account between mortgagor and mortgagee, and it would be a question for the now borrowed by the company), or such of them as shall for the time being be taxipg master whether the costs of the action comprised the costs objected to. due and unpaid, shall be all taken and considered as between the company Of course, if nothing was found due on taking the account, the action would be and the several holders thereof as one debenture, and shall not be entitled to dismissed with costs.-SOLICITORS, W. Ford & A, Ranken Ford ; Last & any preference or priority by reason of priority of date or otherwise, but shall Sons. be paid pari passu out of the funds of the company." There was a similar proviso in each of Gartside's debentures, the sum £5,000 being substituted for £10,000. The bolders of the debentures for the £10,000 claimed priority
LIMITED COMPANY-WINDING UP-OFFICIAL LIQUIDATOR-APPOINTMENT over the holders of the debentures for the £5,000, and FRY, J., allowed the IN CHAMBERS-MOTION TO DISCHARGE-COMPANIES ACT, 1862, 8s. 91, 92.claim. He said that when two deeds were executed on the same day the court | In the case of The Great Southern Mysore Gold Mining Company (Limited), must inquire which of them was executed first. But if there was anything in
| before Chitty, J., on the 23rd ult., a motion was made to discharge an order
before Chitty, J., on the the deeds themselves whicb showed that they were intended to take effect appointing an official liquidator. It appeared that an order had been made for pari passu, or that one of them was intended to taka effect before the other, the winding up of the company on a shareholder's petition, and that there the court would then assume that they were executed in that order which were practically no creditors of the company. When the order was made the would effectuate the incention of the parties. There was nothing in the court especially directed that the usual course of accepting the petitioner's resolution in pursuance of wbich these debentures were issued which showed nominee as liquidator should not be followed. When the matter came before anything about their priority. But the debentures themselves showed an the judge in chambers, two parties, the one representing 4,000 and the othes evident intention that those for the £10,000 should form one block, and that | 16,800 shareholders, appeared in support of different nominees, and after & those for the £5,000 should form another block-in other words, that they strenuous contest his lordship called upon a tbird party appearing, who should not all go together. The only question, therefore, was which set was represented 500 sbares to name a gentleman for the office of liquidator, and to come first. The debeplures for the £10,000 had the earlier numbers and also directed the chief clerk to take the greatest care that such nominee should were sealed first, and would, therefore, primâ facie have priority over the others, be an independent person, and wholly unconnected with the company. The and there was notbing in what took place afterwards to deprive them of tbat official liquidator having been appointed, the rival parties in chambers joined priority. A deed executed by a company did not require delivery like the in; supporting the present motion for his discharge, on the grounds that, deed of an individual, it only required to be sealed with the seal of the com. although no objection could be taken to bim personally, yet he could not be pany. There could, therefore, be no delivery in the nature of an escrow, said, within the provisions of the 91st section of the Companies Act, 1862, to and, there being no condition reserved on the sealing, the debentures for the represent the wishes of the majority of tbe shareholders of the company, and also £10,000 must have priority over the others.
that the appointment should, in accordance with the decision in the AgriThere was another question as to the extent of the lien of a trustee on his culturist Catile Insurance Company (3 D. F. & J. 194), bave been made by the trust estate for moneys expended by bim in relation to it. Various leases of judge himself, and not by his chief clerk. CHITTY, J., said that when the parties mining properties bad been granted to trustees on behalf of the company. The were before him in chambers each of the two contending parties convinced trustees bad assigned one of these leases to the company. And it was contended him that it was not for the benefit of the shareholders that the nomination of tbat, notwithstanding this assignment, the trustees were entitled to a lien on the the liquidator should lie with bis opponent. Each successfully destroyed the demised property in respect of rent, and royalties, and other payments which other's case. This being so, he exercised his discretion, and called upon a they had made in relation to it. FRY, J., said that the court would not solicitor present acting for an independent shareholder to nominate, and at deprive a trustee of trust property without his being repaid any moneys which the same time directed his chief clerk to take every precaution to secure the he bad properly expended in relation to it. But there was no authority for nomination of an impartial person. It was not necessary now to go into all holding that this lien remained after the trustee had parted with the property the circumstances and reasous wbich led him to adopt this course. If any to his cestui que trust. It would be most inconvenient to hold that it did. It objection was taken to it, such objection sbould eltber have been taken at the would be a latent lien, and a purchaser of property which had once been time, or, if taken gubsequently to the appoiotment, should bave been made in vested in trustees would always have to inquire whether their lien had been
chambers, and not in court. The case cited had no application, for the whole satisfied.
matter here had been carefully investigated in chambers by the judge himself. A third question arose in this way. The trustees held, on behalf of the To appear in court by motion was, under tbe circumstances, a somewhat extracompany, leases of different properties granted by different lessory, and they ordinary proceeding. There had been a complete and thorough investigation claimed to consolidate their lien for expenses in relation to one property with in chambers, which had not, nor could have, taken place in court, and tbe their lien for expenses in relation to the other, and to throw the whole on both | matter, which was one purely within the discretion of the judge, was at a properties. FRY, J., held that this could not be done, but the lien on each end. The motion must be refused, with costs.-SOLICITORS, Greenfield 4 property could extend only to the expenses incurred by the trustees in relation Abbott; Beall; Baker & Upperton ; Jackson f Evans ; J. Raven & Co. to that property.-SOLICITORS, Burn & Berridge; Gregory s Co.; Flux & Leadbitler ; Pritchard, Englefield, d Co.; Dollman of Pritchard.
MORTGAGE-POWER OF SALE-BUILDING SOCIETY MORTGAGEES-PUR
| CHASE BE SECRETARY.-On the 24th ult., judgment was given by North PRACTICE-Costs—PLEADING-MORTGAGOR AND MORTGAGEE-JUDGMENT | J., sitting for Kay, J., in a case of Martinson v. Clowes, upon the pour ON ADMISSIONS-DEEDS PLEADED BY REFERENCE-MOTION BY PLAINTIFF FOR whether, on a sale by a building society as mortgagees under their power of $ JUDGMENT ON ADMISSIONS AFTER ISSUE JOINED_RULES OF Court, 1876, the secretary to the society could purchase the property on his own acco ORD. 40, R. 11.- In the case of Barnard v. Wieland, before Chitty, J., on the The secretary had, in conjunction with the society's solicitors, arranged wita 23rd ult., a motion was made under ord. 40, r. 11, by the plaintiffs in the auctioneer about the sale, and had personally taken the directors instruc foreclosure action for an order in accordance with their statement of claim, or tions for the sale to the auctioneer, and told him what was to be the reserve for such order against the defendants as they might be entitled to upon the / price. At the sale, the secretary, having asked and been ivformed by admissions contained in the statement of defence. It appeared that the auctioneer that he could properly bid, did so. The auctioneer stated plaintiffs, who were second mortgagees, had set out in their statement of claim | though he was an officer he was bidding for himself, and not on De the purport and effect of the deeds under which they claimed, stating that of the society, and the bidding was still open. However, after such deeds were duly executed, and referring to the same by dates and par- secretary's bid, no other was made, and the property was knocked ties. The mortgagors, by their statement of defence, craved leave to refer to him. The mortgagor asked to have the sale set aside, on the grou to the deeds mentioned in the statement of claim, and, save as by such docu. that it was made at an undervalue, and that the secretary really bougat ments when produced should appear, did not admit that the same were to the behalf of the society by the instructions of their solicitor conducting the sa purport or effect as mentioned in the statement of claim, and also did not North, J., said it was clear that a mortgagee exercising a power of sale ce admit there was anything due on the mortgage security. The plaintiffs, after | not purchase on his own'account, also that the solicitor or agent of the morises delivering interrogatories which the mortgagors answered, joined issue on the | acting for him in the sale could not. He could see no distinction beth 5th of April, and, on the 22nd of May following served the defendants with l case of the solicitor and that of the secretary, who knew all the circul the present notice of motion. The mortgagors submitted that if ord. 40, 1 of the sale, and had, in conjunction with the solicitor, given the auct
bis instructions. The sale, therefore, to the secretary must, in the event of the action so far as it sought relief on behalf of the public. There was no plaintiff redeeming, be set aside. As to part of the property, wbich the evidence of any actual injury to tbe public, and the objection was raised that secretary had agreed to buy, but afterwards, not wishing to take it, had got the Attorney-General conld not maintain such an action on behalf of tho another person to take at the price he had agreed to give, he said there was public in the absence of such evidence, reliance being placed on what was said nothing to show that such person was in any way otherwise than a bona fide by James, L.J., in The Attorney-General y. The Great Eastern Railway Comparchaser, and the case against him failed.- SOLICITORS, G. S. & H. Brandon ; | pany (27 W.R. 759, L. R. 11 Ch. D. 449, 483). FRY, J., overruled this Johnson & Master, for Coaks, Rackham. d: Cooper, Norwich ; Sharpe, Parkers, objection, and held that the Attorney-General would have been entitled to an Pritchard, & Sharpe, for Miller, Son, & Stevens, Norwich ; Crowdy, Son, f injonction, and, therefore, that the relators were entitled to the costs of the Tarry, for E. E. Blyth, Norwich : Keen & Rogers, for Seago d Son, Lowe. action. He said that there was some conflict, or rather some want of uni. stoft; Digby & Jones, for Diyby & Evans, Maldon.
formity, in the authorities on the subject, but he thought the result of them
was that when an illegal act, such as in its pature tended to the injury of the LIMITED COMPANY - WINDING UP – CREDITOR'S PETITION-DISPUTED
poblic, was being committed, the Attorney.General, on behalf of the public, DEBT-FORM OF ORDER.-In the case of The West Frontino and Bolivia
could maintain an action to restrain it, without adducing evidenca of actual Gold Mining Company (Limited), before Chitty, J., on the 24th ult., which
injury. In one of the earliest cases, The Attorney-General v. The Oxford, was a creditor's petition for the wioding up of the company, two items of the
Worcester, and Wolverhampton Railway Company (2 W. R. 330), Lord debt upon which the petition was founded were disputed by the company.
Romilly, M.R., restrained the opening of a railway which had not been Chitty, J., made an order for the compulsory winding up of the company, but it
approved by the Board of Trade, on the simple ground that the opening would directed the petition to be dismissed if the company paid into court within a
be an illegal act, affecting the publio generally. And in The Attorney-General week the amount of the debt and costs; the question of the disputed items
v. The Cockermouth Local Board (22 W. R. 619, L. R. 18 Eq. 372), Jessel, comprising the debt to be referred to a referee to be agreed upon, or in default
M.R., refused to grant an injunction to restrain a private nuisance, because
there was no evidence of any nuisance resulting from the defendants' acts, but to the official referee ; the referee to have power to dispose of the question of
be restrained the defendants from pollating the water of a river, which was an costs and all questions ; and the company to pay the costs of the petition in any event.-SOLICITORS, G. Davis & Co.
illegal act. There was in that case no evidence of actual injury to the public, but there was evidence that the defendants were doing an illegal act which,
in its nature, tended to the injury of the public. In The Attorney-General v. JUDGMENT— PRIORITY-REGISTRATION-EXECUTOR-ORDER OF ADMINIS- | The Great Eastern Railway Company, James, L.J., appeared to have expressed TRATION-23 & 24 Vict. c. 38, s. 3-4 & 5 WILL. & Mary, c. 20, s. 3.-In a case a somewhat different opinion, but that case furnished no very clear guide, for of Van Gheluive v. Nerinckx, before Fry, J., on the 16th ult., a question Baggallay, L.J., was of opinion that evidence of actual injury to the public arose as to the priority of an unregistered judgment debt in the administration was not necessary to entitle the Attorney-General on behalf of the public to of the assets of an intestate. Section 3 of the Act, 23 & 24 Vict. c. 38, recites an injunction to restrain the commission of an illegal act tending in its the provision of section 3 of the Act 4 & 5 Will. & Mary, c. 20, that no judgment nature to the injury of the public. When that caso afterwards went to the not docketed should "affect any lands as to purchasers or mortgagees, or have House of Lords (28 W. R. 769, L. R. 5 App. Cas. 473), there was no deciany preference against heirs, executors, or administrators in their adminis. sion on this point. But even James, L.J., who was most adverse to the right tration of their ancestors', te tators', or intestates' estates.” It then stated of the Attorney-General, said that in The Attorney-General v. The Cockerthat the later Acts as to the registration of judgments, while providing that un. mouth Local Board, "ibe board were doing works which would or might registered judgments should not affect lands as to purchasers, mortgageas, or probably poison a stream, in direct violation of the law which prohibited them creditors until registered, did not expressly enact that they should not have from committing a nuisance.” In coming, therefore, to the conclusion that any preference against heirs, exccutors, or administrators in their administra. the present action could be maintained by the Attorney-General on behalf of tion of their ancestors', testators', or intestates' estates, “ in consequence whereof the public, his lordship thought he was really acting in accordance with the such heirs, executors, or administrators have been held to have lost the pro- view of James, L.J. And the language of Lord Hatherley in The Attorney. tection wbich they enjoyed" under the Act of William and Mary, and that it General v. The Ely, Haddenham, and Sutton Railway Company (17 W. R. was expedient that the protection should be restored. It then provided that 356, L. R. 4 Ch. 194, 199), supported the view that no evidence of actual no judgment which should not be registered "so as to bind lands, tenements, injury to the publio was necessary wben the act was an illegal oue, which, in or hereditaments as against purchasers, mortgagees, or creditors, shall have its nature, tended to the injury of the public.-SOLICITORS, Clarke, Woodcock, any preference against heirs, executors, or administrators in their administra- f Ryland; l'aterson, Snow, f Bloxam. tion of their ancestors', testators', or intestates' estates.” In the present case the question was whether, in the administration of the assets of an intestate who died in 1866, the debt of a creditor who had recovered a
THE RAILWAY COMMISSION.* judgment against the intestate before his death, but who had never registered
June 6 and 7.-The Ayr Harbour Trustees and P. Barr & Co. (Ayr his judgment, was to be treated as a specialty debt, or whether it could only stand on the footing of a simple contract debt. It was urg-d on behalf of the
Steam Shipping Company) v. The Glasgow and South Western Railjudgment creditor that section 3 of the Act, 23 & 24 Vict. c. 38, was only
way Company, the Caledonian Railway Company, the North British intended to protect the executor or administrator from an action by the judg.
Railway Company, and the North-Eastern Railway Company. ment creditor for a devastavit in case the executor or adm'nistrator should Undue preference The Railway and Canal Traffic Act, 1854 (17 & 18 pay simple contract debts in priority to the judgment debts, but that it did
Vict. c. 31), s. 2. pot affect the order of administration of the assets. FRY, J., refused to accede to
The rates charged by railway companies for traffic to ports when such this contention. He said that the first question was what the statute of William and Mary meant, and there were many cases which showed that it meant,
which showed that it meant traffic is to be carried from such ports to others, must be, relatively to the not only that the executor should be protected from an action for a devastavit,
be protected from an action for a devastavit distance, equal. but that a judgment creditor whose judgment was not docketed should not! This was an application under section 2 of the Railway and Canal Traffic Act, be entitled to any priority in the administration of his debtor's estate. This 1854, by the Ayr Harbour Trustees and P. Barr & Co., for an order was the view taken by the Master of the Rolls in Landon v. Ferguson (3 Russ. enjoining the defendant companies to desist from preferring the traders at 349), and by Wood, Y.C., in In re Turner (12 W. R. 337). Then the Act of Ardros an and Greenock, and the barbour authorities at those ports, and from 1860 said that it was desirable that the protection wbich executors and ad- subjecting P. Barr & Co. and the Ayr Harbour Trustees to any undue ministrators bad lost should be restored. What was the protection ? It and upreasonable prejudice by charging rates in respect of the traffic from resulted from the placing of unregistered judgments on the same level with various towns and places on the defendant railways to the port of Ayr, wbich simple contract debts. The best way of restoring the protection was to restore was to be carried by the steamers of Messrs. P. Barr & Co. to or from Belfast, that provision, and accordingly section 3 provided, in the same words as the at rates, relatively to the distance, higher than similar traffic carried from the Act of William and Mary, that an unregistered judgment should not have any same places to the ports of Ardrossan or Greenock, and which traffic was to preference against executors or administrators in the administration of their be carried froin these ports respectively by the steamers of Messrs. Barr or testators' or intestates' estates, and the meaning was that such judgments Messrs. Henderson to or from Belfast. The defendants filed no answer to the were not to have any priority in the administration.-SOLICITORS, W. W. application. Gabriel; Keighley, Shea, f Bevan ; Cole f. Jackson.
Balfour Browne appeared for the applicants.
R.S. Wright, for the defendants. ILLEGAL ACT-INJURY TO PUBLIC-ABSENCE OF EVIDENCE OF ACTUAL
The COMMISSIONERS said that the applicants were entitled to an order and INJURY-RighT OF ATTORNEY GENERAL TO SUE--COMPANY-EXCESS OF
to their costs. STATUTORY POWERS-INJUNCTION.-In a case of The Attorney-General v.
Solicitors for the applicants, George Davies, Morgan, f: Co. The Shrewsbury Bridge Company, before Fry, J., on the 17th ult., the ques.
Solicitors for the defendant railway companies, William Robertso), for tion arose whether the Attorney-General, suing, at the relation of individuals,
| Anderson f Patterson, Glasgow. on behalf of the public, can maintain an action to restrain an illegal act in the absence of evidence of actual injury to the public. The company were empowered by their special Act to make a bridge over a navigable river. Their
COUNTY COURTS. parliamentary powers had expired, and they were, notwithstanding, continuing
SOUTHWARK. their works, and were obstructiog a public highway, and driving piles into the
(Before H. J. Sronor, Esq., Judge, and a jury.) river. The action was brought by ihe Attorney-General, at the relation of some shareholders in the company, and by the same shareholders as plaintiffs,
June 12.---Jex y. Kindon & Co. to restrain the company from thus acting in excess of their powers, and from | Employers' Liability Act-Negligence--Section 1, sub-section 2-Superexpending their capital upon the unauthorized works. Before the trial the
intendence-Manual labour-Section 8. company bad obtained a new Act, extending the time for the completion of This was an action under the Employers' Liability Act to recover three their works, and it also appeared that they had never intended to apply their years' wages under the following circumstances :capital in the execution of unauthorized works. The only question to be decided at the trial was whether the relators were entitled to the costs of the
* Reported by W. H. MACNAMARA, Esq., Barrister-at-Law.
The plaintiff was a workman in the defendants' employ, and on the 12th London, Mr. P. Rickman in the chair, the other direotors present being of December, 1880, was in the discharge of his duty getting a “gling" from Messrs. Asker (Norwicb), Brook, Harris (Leicester), Hedger, Keep, Pen. a dark corner of the works, when a carriage-pad, weighing 741bs., which was pington, Roscoe, Smith, Veley (Chelmsford), Walters, Williamson, and being hoisted to the roof by means of a pulley, fell upon him, breaking two Woolbert (Mr. Eiffe, secretary). A sum of £300 was distribated in relief of his ribs and injuring bis spine.
of necessitous solicitors and their families ; an annuity of £50, named “The The cause of the carriage-pad falling was owing to its being negligently Daniel Reardon " Aongity, was granted to a deceased member's widow, and attached to the pulley-rope by a boy named Cornwall, who was not called as two smaller appuities of £25 each, named respectively “The Elizabeth a witness. A man named Cracknell bad told the boy to attach the rope to Reardon" and " The Margaret Reardon " Annnities. were granted to the the pad, but had given him directions as to fastesiog it, which, if carried | daughter and widow of deceased non-members ; seventy-seven gentlemen out would have prevented, the accident. The man Cracknell admitted that
were admitted members of the association; the following resolation was his usual duties were those of manual labour, and it was therefore sub- unanimously passed — " That the best thanks of the directors of this associamitted, at the conclusion of the plaintiff's case, that the employers were not tion be and are hereby presented to Francis Thomas Birobam, Esq., for his responsible under section 8 of the Act, even if Cracknell should be found
kindness in presiding at the late (twenty-second) anniversary festival of guilty of giving the boy a negligent order, and, further, that the plaintiff's
this Association, held at the Star and Garter Hotel, Richmond, Sarrey, on evidence showed that the accident arose solely from the boy's negligence.
the 14th of June instant, and for his able advocacy on that oooasion of the His HONOUR concurred in this view, and non-suited the plaintiff.
charity to the sopport of every solicitor tbrooghout Eogland and Wales; in Boardman, for the plaintiff,
addition, for the bandsome list of contributions to the association proonred Ruegg, for the defendants.
by him in connection with the festival, and for his own generous donation of twenty gaineas"; resolutions of thanks were also passed to other principal
donors at the late festival; and other general business was transacted. SOUTHWARK. (Before H. J. STONOR, Esq., Judge, and a Jury.)
June 8.-Mallett v. Badart. Employers' Liability Act, 1880-Defect in machinery, section 1, subsection 1-Contributory negligence.
LAW STUDENTS JOURNAL. This was an action under the Employers' Liability Aot, brongbt by a boy aged 16, sving by his next friend, against bis employers for compensation
COUNCIL OF LEGAL EDUCATION. for injuries.
MICHAELMAS EXAMINATION, 1882. The plaintiff sued under sub-sections 1 and 2 of section 1, alleging defect in the machinery and negligence on the part of a foreman,
Examination of Candidates for Pass Certificates. The accident was caused by the plaintiff posbing in the "slide" of a The attention of students is requested to the following rules:seed-crushing macbind with his foot. The plaintiff stated that, upon enter- No student admitted after the 31st of December, 1872, shall receive from ing the employment, he was told by a foreman to take his instructions the council the certificate of fitness for call to the bar required by the from a man named Brown, and that Browo bad told him that, when the four Inns of Court upless he shall have passed a satisfactory examination slide would not go home by pushing it with tbą bande, be was to use his in the following subjects-viz. (1) Roman law; (2) The law of real and foot. The plaintiff also contended tbat there should bave been a ridge or personal property ; (3) Common law; and (4) Equity. coping of iron round the basin of the maobine, and if this had been there No student admitted after the 31st of December, 1872, shall be examined the accident could not have happened. He also called several workmen, for call to the bar until he shall have kept nine terms; except that students who stated ibat similar machines used in other factories had this ridge or adınitted after that day sball have the option of passing the examination coping.
in Roman law at any time after having kept four terms. For the defence it was contended that the proximate cause of the accident An examination will be held in October next, to which a student of any was the boy's own negligence in using his foot to shut the slide, and evidence of the Inns of Court, who is desirous of becoming a candidate for a certificate was given that the manager had himself previously cautioned the boy against of fitness for being called to the bar, will be admissible. doing so. It was also stated that the ridge or coping on such machines was Each student proposing to submit himself for examination will be required only put there for the purpose of allowing a greater amount of seed to be to enter his name, personally or by letter, at the treasurer's or steward's crushed at one time, and was not for tho purpose of protection.
office of the Inn of Court to which he belongs, on or before Thursday, the His HONOUR left three questions to the jury-(1) Was there defect in the 6th day of October next; and he will further be required to state in machine? (2) Did this arise or fail to be discovered through the employer's writing whether his object in offering himself for examination is to obtain a negligence ? (3) Was the boy goilty of contributory negligence? The certificate preliminary to a call to the bar ; or whether he is merely jury answered question No. 1 in the negative and question No. 3 in the desirous of passing the examination in Roman law under the above-stated affirmative. Judgment for the defendant accerdingly.
rule. Boardman for the plaintiff.
The examination will commence on Tuesday, the 17th day of October Ruegg for the defendant.
next, and will be continued on the Wednesday, Thursday, and Friday following.
It will take place in the hall of Lincoln's-inn; and the doors will be closed ten minutes after the time appointed for the commencement of the
The examination by printed questions will be conducted in the following order:-Tuesday morning, October 17, at ten, on the law of real and personal
property ; Wednesday morning, October 18, at ten, on common law; Thurs. METROPOLITAN LOCAL GOVERNMENT (OFFICERS)
day morning, October 19, at ten, on equity ; Friday morning, October 20, ASSOCIATION.
at ten, on Roman law. The fifth annual meeting and dinner of the Metropolitan Local Government The oral examination will be conducted in the same order, and on the (Officers) Association was held on Monday last at the Star and Garter Hotel, same subiects, as above apvointed for the examination by printed questions. Richmond. The annual report, which was submitted, and ordered to be The examiner in the law of real and personal property will examine in printed and circulated, touched upon various topics of interest in connection the following subjects :-The elementary principles of the law of real and with local government, including the legislation of the past and present personal property, with reference chiefly to the treatises of Mr. Joshua sessions ; the decision of the Court of Appeal in November last as to tbe right Williams on those subjects. Candidates will be examined in the elements of of occupiers of apartments in “let-out” houses to the franchise, upon which the foregoing subjects. point various pertinent and useful suggestions were made ; the anomalous state The examiner in common law will examine in the following subjects of the bankruptcy law as to the preferential payment of rates, and other (1) The law of contracts ; (2) The law of torts; (3) Criminal law; (4) The matters ; but the topic of principal interest in the report, as in the after procedure in the Queen's Bench Division of the High Court of Justice. dinner speeches, was the intention of the Government, declared early in the Candidates will be examined on general and elementary principles of law. session, to introduce a measuro dealing with the local government of the
The examiner in equity will examine in the followiog subjects:-(1) metropolis. This was not treated simply from the official point of view; Trusts ; (2) Administration of assets. on the coutrary, the advantage of some alteration was recognized by many The examiners in Roman law will examine in the Institutes of Justinian, members ; but stress was laid upon the great importance to all concerned, and books 1 and 2 ; book 3, title 13, to the end of the book; book 4, titles I to to ratepayers especially, of the Government, io preparing any scheme, availing | 5 inclusive. themselves of the experience and skill which, for so many years, bave been applied to carrying out the present system, by consulting such an association
HILARY EXAMINATION, 1883. as the present. About fifty members and friends sat down to dinner, amongst
Exa mination of Candidates for Studentships, Honours, and Pass Certificates. them being Mr. W. E. Greenwell (St. Marylebone), president; Messrs. Frank The attention of students is requested to tbe following rules :Dethridge (Paddington), and E. Hoghes (Plumstead), vice-presidents; Sir As an encouragement to students to study jurisprudence and Roman law, W.T. Charley (City of London), Mr. A. Pocock (Metropolitan Board of twelve studentships of one hundred guineas each shall be established, and Works), Dr. Thomas (coroner for Central Middlesex), Rev.J. A. Colebeck, and divided equally into two classes ; the first class of studentships to continue for othere,
two years, and to be open for competition to any student as to whom not more
than four terms shall have elapsed since he kept his first term; and the SOLICITORS' BENEVOLENT ASSOCIATION,
second class to continue for one year only, and to be open for competition to
any student, not then already entitled to a studentship, as to whom not less The usual monthly meeting of the board of directors of tbis association than four and not more than eight terms shall have elapsed since he kept his was beld on Wednesday, Jane 21, at the Law Institution, Chancery-lane, first term; two of each class of such studentships to be a varded by the