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seems to have been thought necessary for the due qualification of reversion in the rest. It would seem that, under section 11, the the covenants referred to in the section :
“enforce the obligation” of the covenant against the “10.-(1.) Rent reserved by a lease, and the benefit of every covenant or owner or owners of the reversion in the other portion. This provision therein contained, having reference to the sobject-matter thereof, liability will probably give rise among the owners of the several and on the lessee's part to be observed or performed, and every condition of portions of the reversion to claims of indemnity and contribution lo and shall go with the reversionary estate in the land, or in any part thereof, which are not provided for by the Act, and will perhaps not be immediately expectant on the term granted by the lease, notwithstanding easy to adjust. severance of that reversionary estate, and shall be capable of being recovered, “12.-(1) Notwithstanding the severance by conveyance, surrender, or other. received, enforced, and taken advantage of by the person from time to time wise, of the reversionary estate in any land comprised in a lease, and not. entitled, subject to the term, to the income of the whole or any part, as the withstanding the avoidance or cesser in any other manner of the term granted Case may require, of the land leased.”
by a lease as to part only of the land comprised therein, every condition or There can hardly be any doubt that the phrase “ having
right of re-entry, and every other condition, contained in the lease, shall be reference to the subject matter” of the lease, is much wider in its estate as severed, and shall be in force with respect to the term whereon each
apportioned, and shall remain annexed to the severed parts of the reversionary terms than the old phrase “ running with the land.” It seems to severed part is reversionary, or the term in any land which has not been include every corenant except those which are collateral in the surrendered, or as to which tho term has not been avoided, or has not other. narrowest sense of the word. In this respect the section greatly wise ceased, in like manner as if the land comprised in each severed part, or extends the legal powers of reversioners.
the land as to which the term remains subsisting as the case may be, had alone
originally been comprised in the lease.” What is the true intent of the provision that "rent reserved by a lease shall be incident to
The words, “notwithstanding the avoidance or cesser in any the reversionary estate in the land, or in any part thereof,
other manner of the term,” are not here used very suitably ; and shall be capable of being recovered
because they seem to imply that conveyance, surrender, and other
person entitled, subject to the term, to the income of the whole or any
like acts in the law, might operate by way of avoidance or part, as the case may require, of the land leased”? This seems
cesser. They were perhaps inserted, like section 14, in reference to say that a person entitled to the income of half the land may term limited subject to a condition. The section seems to empower
to the conditional limitation of a term as distinguished from a recover the whole rent. Even if we suppose the whole to be recovered, upon trust as to half for the owner of the other moiety, any person entitled in reversion to a part only of the land comthe conclusion is doubtless too absurd to be accepted; but we
prised in a lease to re-enter upon that part, to the same extent and think it unsatisfactory that the court and the public should be left there had been no severance of the reversion, and his title to the
in like manner as he might have re-entered upon the whole land, if to such a consideration for their guidance. Or will it be that the bare words “ as the case may require” were intended to whole had been the same as his title to the part. The effect of the supply this defect?
section is therefore sufficiently beneficial to reversioners. Some Lastly, there is some ambiguity in the use of the word doubt may be felt whether it will not be found to go further in “ income.” The use of this word is more common in reference to this direction, under certain circumstances, than was foreseen. persons who take as equitable owners, through the hands of trus- Suppose a building with adjacent lands to be leased, the lessee tees, than to persons who take by virtue of a legal estate. It covenanting to keep the building in repair, with a condition of recannot have becn intended that every beneficiary under a settle- entry on breach of the covenant; and that the lessor grants away ment of real estate shall be entitled to exercise the rights and his reversion in the part of the land whereon stands the building. powers given by this section.
The condition will then be purely collateral to the part of the Section 10 having dealt with the incidence of the benefit of the land in which he retains the reversion. But it would seem that, lessee's covenants, the next section deals with the incidence of the upon a breach of the covenant, he might eject the lessee from this obligation of the lessor's covenants.
part of the land. For the fact that a condition is collateral does
not affect the right of the original lessor and his heirs; and the "11.-(1.) The obligation of a covenant entered into by a lessor with reference to the subject matter of the lease shall, if and as far as the lessor has objection that the reversion has been severed is obviated by the power to bind the reversionary estate immediately expectant on the term present section. Apinted by the lease, be annexed and incident to, and shall go with, that re.
The three sections lastly reviewed by us, 10-12, apply only to ** rsionary estate, or the several parts thereof notwithstanding severance of leases made after the commencement of the Act. The parties are that reversionary estate, and may be taken advantage of and enforced by the nowhere empowered to exclude their operation, and it is a curious tion in law, or otherwise ; and, if and as far as the lessor bas power to bind question, whether and how far their operation could be excluded the person from time to time entitled to that reversionarg estate, the obligation by parties who might desire to exclude them. aforesaid may be taken advantage of and enforced against any person so We are reminded by section 13 (which we have explained entitled."
in a former article) that we have more than once adverted The meaning of the words “if and as far as the lessor has to what looks like a haphazard arrangement of topics power to bad the reversionary estate," is not very clear. They in the Act. It certainly seems to us not only that secmay perhaps refer to the case of a lessor leasing under a power tion 13 might more conveniently have formed part of section 3, whether statutory or other) enabling him to make a lease for a but also that section 11, dealing with the lessee's rights, is very longer term than he could make at common law by virtue of his awkwardly obtruded between sections 10 and 12, which deal with estate in the land; though this is a power to create a term which the rights of the lessor. We may also point out that the insershall be good against the reversioner, and is evidently a power to tion of section 12 has gone so far towards making the inclusion bind the reversioner rather than to bind the reversionary estate. of “conditions” in section 10 superfluous, that we can only explain They may also be designed, and are much better adapted, to ex- the co-existence of the two phenomena by supposing section 12 to clude from the section leases which operate only by estoppel, have been devised as a substitute for the part of section 10 dealing where the lessor has no lawful estate in the lands.
with conditions, and that this part of section 10, like Part I of It is to be noted that the words in the last line of the the first schedule, escaped being struck out by inadvertence. section, “ any person so entitled,” seem plainly to refer to the pre- We should be strongly confirmed in this conjecture by the fact ceding words, “the person from time to time entitled to that that section 14 deals with restrictions upon the rights dealt with in terersionary estate"; which contain no mention of “the several section 12, if the connection were not interrupted by the unlooked parts thereof”; whence it would seem that the latter part of the for apparition of section 13. section does not, like the preceding part, affect to give a remedy Section 14 applies (sub-section 9) to leases made either before to the termor after a severance of the reversion.
or after the commencement of the Act, and will have effect The words of the sub-section which enact that the obligation of notwithstanding any stipulation to the contrary. But subthe lessor's covenants shall go with the “reversionary estate, or section 8) it does not affect the law relating to forfeiture or relief the several parts thereof, notwithstanding the severance of that in case of non-payment of rent; nor (sub-section 6) does it reversionary estate,” may perhaps have inconvenient consequences. extend to a condition against assigning or under-letting, or of It must be observed that such covenants might be such as to apply forfeiture on the lessee's bankruptcy, or on the taking in execution exclusively to one portion only of“ the subject matter of the lease." of his interest, or to a condition in a mining lease for securing to the Suppose the reversion in this portion to be separated from the lessor access to books, machines, or the mine itself. Even allow
0 6 8 1 1 0
ing for these exceptions, the scope of the section remains restricted are due rather to the practice of conveyancers than to sufficiently wide; especially as (sub-section 7) the existing the wish of the parties; and the section only places on a legal statutes relating to forfeiture for neglect to insure against fire are footing the equitable understanding by which fair-dealing landrepealed, and such forfeitures will in future be regulated by the lords are guided in enforcing their rights. It may be doubted provisions of this section :
whether the exception from the section of a condition of re-entry "14.-(1.) A right of re-entry or forfeiture under any proviso or stipulation for breach of a covenant against assigning or underletting will in a lease, for a breach of any covenant or condition in the lease, shall not be not do harm. Of all the covenants in a lease this is, we believe, enforceable by action or otherwise, unless and until the lessor serves on the the most likely to be used for purposes of oppression. We may lessee a notice specifying the particular breach complained of, and, if the add, in conclusion, that the exception from the operation of the breach is capable of remedy, requiring the lessee to remedy the breacb, and, in any case, requiring the lessee to make compensation in money for the section of conditions for forfeiture on the bankruptcy of the lessee, breach, and the lessee fails, within a reasonable time thereafter, to remedy or taking in execution of his interest in the lease, will render it the breach, if it is capable of remedy, and to make reasonable compensation in desirable that all provisoes for re-entry shall contain this money, to tbe satisfeotion of the lessor, for the breach.li
condition, The earliest part of the sub-section seems to deal with-(1) a right of re-entry under a proviso for a breach of a covenant: a thing with which all lawyers are familiar; and (2) a right of re-entry, under a proviso, for a breach of a condition ; of which the meaning is less
CORRESPONDENCE. obvious. It will be seen that in future the lessor will be able to enforce a forfeiture neither by action nor by entry until certain
COSTS OF ATTENDING SUMMONSES AT JUDGES'
CHAMBERS. conditions have been fulfilled on his part and certain further defaults have been made on the part of the lessee. The latter can
[To the Editor of the Solicitors' Journal.] always delay the lessor's operations during a reasonable time,” induced me to write to you to call attention to what I think is a common
Sir,—The letter of " À Practising Solicitor" in your last number has and may escape the forfeiture altogether, (1) if the breach admits
error in supposing that a solicitor is only entitled to charge 6s. 8d. for of no remedy, by only paying damages ; (2) if the breach admits attending a summons at judges chambers. If your readers will look at of remedy, by remedying the breach in addition to paying damages. the scale of costs in the schedule to the order as to costs they will find It may be predicted that in some cases, (where, for example, a the allowances for attendances as follows:mining-lessee's breach of covenant is flooding the mine,) the
£ 8. d. necessity of waiting for his remedy would inflict great injury on
On a summons at judge's chambers .
Or, according to circumstances, not to exceed the lessor ; but we presume that “ reasonable time" would be construed with reference to the exigencies of the case.
But although this is the authorized scale, the masters of the Queen's
Bench Division invariably allow 6s. 88. only for attending a summons, “ (2.) Where a lessor is proceeding, by action or (therwise, to enforce such whatever its importance or the length of time occupied. & right of re-enty or forfeiture, the lessee may, in the lessor's action, if any,
Feeling that this practice was wrong and worked injuriously, both to or in any action brought by himself, apply io the court for relief; and the the profession and the public, I on one occasion, in which the circumčcurt may grant or refuse relief, as the court
, þaving regard to the proceed. stances I considered (warranted it, sought to break through the usage ings and conduct of the parties under the foregoing provisions
of this section; and to get one guinea allowed for attending an important summons and to all the other circumstances, thinks fit; and in case of relief may giant before the judge. It was attended by the solicitors in person on each it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain ang side. We had to wait between three or four hours before the summons was like breach in the future, as the court, in the circutstances of each case, called. Several cases were cited, the discussion took nearly half an hour, thinks fit."
and the judge in making an order added a certificate for counsel, evidently There are only two ways in which a lessor can proceed to enforce under the impression that one of us was a member of the bar; yet, nothis right-viz., action and entry. The words“ or otherwise,'
withstanding all I have stated was strongly urged on him, the taxing
master refused to allow more than 6s. 8d. for the attendance. With this, near the beginning of the sub-section, must therefore mean “ by however, I refused to be content, and carried in objections, and, ultimately,
after spending a considerable amount of time in supporting them (which The discretion of the court as to granting relief, unlike the might have been much more profitably employed), I succeeded in iuducing discretion given by the repealed statutes, is fettered by no the master to increase the allowance to 13s. 4d., but I could not by any restrictions. We expressed an opinion, when the subject was first persuasion get him to make it one guinea; and, as I got nothing for premooted, that this is a mistake; and we think that this uncon- paring or attending on the objections; your readers will quite understand trolled freedom will give rise to a startling variety of judicial the satisfaction of breaking through a pernicious usage which I believe
that my gain was of little value to me in this particular case, but I had decisions, without the possibility of any appeal, since the matter is only works injuriously to all parties interested. purely one of judicial discretion.
My object in writing this letter is to call attention to the fact that the Sub-section (4) provides that the section shall apply where the masters can allow more than the accustomed 6s. 8d. in a proper case, and condition causing the forfeiture was inserted in the lease under to urge upon your readers to aid as far as they can in breaking through any of the statutes which, conferring upon various corporations the present practice, and in cases where they attend an important sum and persons powers of leasing larger than they could otherwise mono in person, to insist on the masters increasing the allowance. In the exercise, provide that the leases so to be granted shall contain con- end, I am sure, clients will be benefited, as it will
lead to solicitors them
selves attending in person important summonses at judges' chambers, inditions of re-entry for non-payment of rent or breach of any of the stead of giving a brief to counsel almost as a matter of course, which lessee's covenants.
practice has led to a cry in some quarters against counsel at ding Sub-section (5) displays much foresight and acumen.
chambers at all, an alteration I do not desire to see. “ (5.) For the purposes of this section a lease limited to continue as long only
A CITY SOLICITOR. as the lessee abstains from committing a breach of covenant, shall be, and take effect as, a lease to continue for any longer term for wbioh it could subsist,
LEGAL PROCEDURE, but determinable by a proviso sor re-entry oñ such a breach." The intention of this sub-section is to include in the pro
[To the Editor of the Solicitors' Journal.) visions of the section a term limited by way of conditional mittee are now before the judges, and there seems some danger that
Sir --The reactionary recommendations of the Legal Procedure Com. limitation as distinguished from a term limited upon condition. they may pass into law. Is it too late to protest against their basty The sub-section did not appear in the Bill as it was originally adoption, and to ask that solicitors, at least, who are best acquainted drafted. In a very important case before the Master of the with the interest of their clients, may have some voice in the framing of Rolls in the carly part of this year, the distinction between a the new procedure ? conditional limitation and a limitation upon condition, as bearing Two of the threatened changes in particular are worthy of special upon the destruction of a right of entry by severance of the notice. reversion, arose; and it would doubtless have caused keen discus- 1. The proposed abolition of pleadings in common law actions, except sion if the case had not unfortunately been settled by compromise. by special leave, and, We seem here to discern a very plausible origin for sub-section (5).
2. The restrictions placed on discovery.
To abolish pleadings is to fall back on a system happily long ago Although we are disposed to look with great jealousy upon all swept away, under which each party found for the first time when he attempts to restrict freedom of contract, we think that section 14 came into court what was the case he had to meet, and to adopt the was justified by peculiar circumstances. The contracts thereby roughi and ready justice that prevails in our county courte.
case, and if the system is fairly worked, om de especialty inin state phos Perhaps you will tell me what my successor is to do, it her
system of pleading, each party has to his
Majesty, happening to require a knife of the astonishing sharpness bate Division, issues were adjusted between the parties, and the costs of above mentioned, calls upon him to render his service due? Is he to each issue separately dealt with on the trial, no system could, I think, be incur a forfeiture in the event of the render of knives in the accustomed better. To insist on special leave for plcadings is simply to hamper the place and manner being insisted on ?
WALTER DE ALDERAM. administration of justice, and in the long run to make justice mote costly.
To abolish discovery, aguin, by allowing a master, at a very early stage, and before the parties themselves fairly understand either their opponents' case or their own, to decide what papers are to be produced, and what ques.
CASES OF THE WEEK. tions answered, is a natural corollary to the recommendation to abolish plead. ings. The parties will thus be left in the dark as to their opponents'
case ; BANKRUPTCY-PROTECTED TRANSACTION— NOTICE OF ACT OF BANKRUPTCY they will have to bring up witnesses to prove what the other side would, --NOTICE OF PRESENTATION OF BANKRUPTCY Petition-BANKRUPTCY Act, on intertogatories, have been obliged to admit, and to prove facts amply 1869, ss. 94, 95.-In à case of Ex parte Banks, before the Court of Appeal evidenced by documents which the proposed changes will place beyond on the 17th inst., & question arose as to notice of an act of bankruptcy. their reach.
The trustee of a bankrupt claimed to recover from his backers all moneỹs From the Legal Procedure Committee's report it appears that out of which they had received on his account sabsequently to the 18th of June, about 60,000 cases begun in 1879, over 36,000, more than 61 per
on the ground that they had on that day received notice of ati act of bank cent. of the total, were practically undefended, and were settled in a rapto committed by him. Sometime in May a clerk in the employment Bummary manner. Of the remaining 39 per cent., less than 4 per cent. Court, with the view of ascertaining whether a petition had been presented
of the bankers' solicitors was searching the index at the London Bankruptcy went to trial ; 35 per cent., therefore, of all actions, or over 90 per cent. against another person named Smith, and in the course of his search he of those in which there was any substantial litigation, weré settled with happened to notioe that a petition had been presented against the bankrupt, out a trial.
whom he knew to be a customer of the bank. On the 18th of June the The significance of these figures, upon which the committee has based clerk happened to be at the bank un other business, and in the course of its reconimendations, seems to have been strangely misunderstood. Of conversation with the bank manager he told him that, when be was searching the defended cases settled without trial, every solicitor familiar with the the index at the Court of Bankruptoy, he had noticed that a petition had details of litigation will, I think, admit that a large majority were settled been presented against the bankrupt. The manager happened to see the when the parties found through the pleadings, from answers to interroga- bankrupt a day or two afterwards, and he then asked him about the petition. toties, and from discovery of documents, that the case on one side or the Tbe bankrupt answered that the petition had been settled. In the following other was untenable. To abolish the most effective weapon in the Augast he was adjudicated a bankropt upon another petition, founded upon hands of honest litigants is, indeed, a false economy, and will simply another act of bankruptoy which had been committed before the act alleged in tend to multiply the number of actions that come to trial, and to increase the petition of which the manager had been told. The Court of Appeal the cost of evidence at trial.
(Jessel, M.R., and BAGGALLAY and Losi, L.JJ.) held tbat the bankers bad The true remedy for many of the existing defects of the common
had a sufficient notice of an act of bankruptog on the 18th of June, and that law system is, it seems to me, to assimilate the common law to the chan- they must account to the trustee for all moneys of the bankrupt which they
had received since that date. JESSEL, M.R., said that the decision of the cery system in so far as to make the master, like the chief clerk, only the
Court of Appeal in the recent case of Lucas v. Dicker (29 W. R. 115, L. R. judge's deputý, bound when required to refer applications to the judge. 6 Q. B. D. 84), showed that notice of the presentation of a bankruptoj This change would cheapen law, for no order need be drawn up, and no petition, by whomsoever given, amounted to notice that an aot of banknew sammons issued by way of appeal to the judge. Counsel would roptog had been committed by the person against whom the petition was cease to appear before the master, and a fairer and more patient hearing presected. His lordship was not prepared to decide what kind of ongaa! would be secured than even counsel at present obtain.
conversation would be notice to a man of business. But in the present In any case, before new rules are issued the opinion ought surely to be case the notice was taken by the bank manager as a matter of business, and taken of men familiar with everyday practice. The Incorporated Law he thought it so important that he interrogated the bankrupt on the subject. Society on Friday last appointed a committee to consider and re- The informatiea was given by the olerk as a notice and was accepted bg the port upon the recommendations of the Legal Procedure Committee. bank manager as such, and that was sufficient. BAGGALLAY and Lugh, Is the opinion of such a committee not worth the waiting for? It L.JJ., conourred. -SOLICITORS, Kearsoy, Son, de Hawes ; J. J. Hubbard, fairly representative of the working members of the profession, and if it Son, & Eve. succeeds in eliciting the views of those actively engaged in common law practice, there will, I believe, be found a vast majority to affirm un.
Trustee in BANKRUPTOR-DISCLAIMER OF LEASE OF BANKRUPT-Rohr hesitatingly that the proposed changes, although intended to effect some
To Remove FixtureS-BANKRUPTCY Act, 1869, s. 23.-In a case of E.c economy in interlocutory proceedings, would very largely increase both parte Glegg, before the Court of Appeal on the 17th inst., a question arose as the cost and the uncertainty of litigation.
J, S. R. to the effect of a disclaimer by a trustee in bankraptcy of a lease belonging to November 23.
the bankrupt upon the right of the trustee to remove fixtures attached
to the demised property. The lease, which was for ten years from November 12, THE CONVEYANCING ACT.
1874, contained a proviso that the lessees, their execators, administrators, and
assigné, might at any time or times during the continuanoë of the terin, or [To the Editor of the Solicitors' Journal.]
within twelve months from the expiration or otherwise sooner determination Sir, I should wish to call to your notice, if you will allow me, a càse might have erected on the demised premises for trade purposes. 'On February
thereof, bat not afterwards, remove any buildings or maohinery which they seemingly unprovided for in section 15, sub-section (1) A. mortgages a 17, 1881, the lesgees filed a liquidation petition, under which, on Maroh 10, * property to B., and afterwards settles the same property on his son C. for trustee of their property was appointed. On April 9 the trustee sold the life, with remainders over. A. then dies. O, pays off the mortgage, but fixed machinery which the debtors had erected on the land, and it was therewishes to keep it alive; and, therefore, proposes to take a transfer to upon removed by the purchaser. Oa April 13 the trustee disclaimed the 11a99. himself. Is he a "third person under the section? He is certainly The lessor then claimed from the trustee the proceeds of sale of the machinery, entitled to redeem.
R. N. R. on the ground that by the disclaimer the trustee had lost the right to remove [But see the interpretation clause, section 2, sub-section 6, as to the the fixtures. Bacon, C.J., held (29 W. R. 898) that, inasmuch as there was meaning of “ mortgagor.”—ED. S. j.]
& bargain that the lessees should have the righé to remove the fiftntos within twelve
months after the expiration of the lease, the case was distinguishable
from Ex parte Stephens (26 W. R. 136, L. R. 7 Ch. D. 127) and Ec parte THE ABOLITION OF THE EXCHEQUER DIVISION. Brook (27' W. R. 253, L. Ř. 10 Ch. D. 100), which depended upon the com[To the Editor of the Solicitors' Journal.]
mon law right to remove fixtures after thé end of a lease, and that, con 90
quently, the right to remove the fixtures remained, notwithstanding the Sir,- Will any of your learned readers be good enough to assist me in surrender which was, by section 23, to be deemed to be the effect of the disa a little point ?
claimer, and could be exercised by the trustee as an assign of the lessées, In 3 Ric. 2 I held (as appears by the book of Jocular Tenures of that The Court of Appeal (Jessét, M. R., and BAGGALLAY and Lush, L.JJ.) learned man, Blount) of the King certain lands in the More in Salop, by the reversed this decision, holding that the right to remove the fixtares was gone service of paying to the King yearly at his Exchequer two knives, whereof with the lease. Jessel, M.R., said that, by section 23 of the Bankruptcy one ought to be of that goodness that at the first stroke it would cut Act, the effect of the disclaimer was that thỏ lease was to be deemed to have as under in the middle a hazel rod of a year's growth and of the length been surrendered from the date of the appointment of the trustee. A sürof a cubit. This service I ought to do, and did, in the middle of the render of the lease was & surrender of the whole lease, not merely of the Exchequer, in the presence of the Treasurer and Barong, every year on
demise of the land, but also of the licence to remove the fixtures, and of every the morrow of S. Michael.
provision in the lease, whether beneficial to the leggees or onerous. The whole Now, I am much concerned (as any respectable ghost would be) to which, by construction of law, had ceased to exist before the doing of the
lease was gono, and it was impossible to justify an act done under a licence see that my successor in title renders all proper dues to his Sovereign; This poirit, however, did not appear to have been considered by the Chief but I am told that you moderns have abolished the Court of Exchequer, Judge at all. BAGGALLAY, L.J., said that the distinction suggested between and this being so, how is the owner of the land in the More (formerly the present case and Ec parte Stephens and Ex parte Brook anointed to no mine) to render his two knives in the Excheqüet p
distinction at all, because the proviso fell with the loase. LUSH, LJ., said
that there was no such thing as a surrender of a part of a lease ; by a sur. trustee was trustee for somebody else, and could not convey without a breach reoder the entire relation of landlord and tenant was dissolved. When, of trust, whilst the trastee was left in ignorance-those cases, I say, involve a therefore, the disclaimer was executed, the relation of landlord_and tenant principle which I have never been able to understand.”]-SOLICITORS, R. Smith came to an end as if it had never existed.-SOLICITORS, Gregory, Rowcliffes, gf Wilmer; W. F. Watson ; Paterson, Snow, $ Bloxam. Co.; C. M. Barker.
CHARGE ON Debt-Notic3-PRIORITY-OFFICER'S COMMISSION MONEY PROOF IN BANKRUPTCY-SECURED CREDITOR-DEDUCTION OF VALUE OF REGULATION OF THE FORCES ACT, 1871 (34 & 35 Vict. C. 86), s. 3.-Io a case SECURITY.-In a case of Ex parte The West Riding Union Banking Company, of Johnstone v. Cox, before the Court of Appeal on the 21st inst., a question before the Court of Appeal on the 18th inst., a question arose as to the right of arose as to the priority of incombrancers upon the money payable by the Army a secured creditor to prove in the bankruptcy of his debtor for the full amount Purchase Commissioners to an officer in the Army in respect of his com of his debt without making any deduction in respect of the value of his mission upon his retirement from the Army. An officer had given three security. The question arose thus: B. and T. carried on business in partner charges upon the money to which he would be entitled on his retirement, and ship as cloth manufacturers, they being entitled to the profits in equal shares. various notices had been given by the incumbrancers to the Army agents They held a lease of their mills, which had been granted to them, their through whom the money would be payable. The officer having sent in his executors, administrators, and assigns. On the 1st of June, 1875, they entered papers, the Army agents, on the 29th of March, received the sum of £800 into an agreement for the dissolution of the partnership as from the 1st of through the Paymaster-General, for which they gave a receipt to the Com. May, 1875. The agreement recited that the value of the interests of the missioners, which stated that the money was received on account of partners had been ascertained, and that a moiety of the ascertained value the officer. The £800 was entered by the agents in their books in (except that of the mills and the fixtures therein) had been paid to B. ; that the account of the Commissioners, and opposite to it was written it had been agreed that B. should grant T. a lease of his moiety of the mills the name of the officer. The officer's retirement was published in the and fixtures for the term of seven years from the 1st of May, 1875, and that T. London Gazette on the evening of the 16th of May, 1879. The first incam. should be entitled to carry on the business on his own account as from the 1st brancer gave a fresh notice of his charge to the Army agents on the of May, 1875, and that he should pay all the debts of the firm, and indemnify 21st of May; the
incumbrancer the morning of the B. against them. On the same day B. executed a lease of his moiety of the 17th of May, as soon as the agents' office was open ; and the third incom. mills and fixtures to T. for seven years from the 1st of May, 1875. At the brancer at the same time. The fund was insufficient to pay them all in full. date of the dissolution the firm were indebted to their bankers on their bank Section 3 of the Regulation of the Forces Act, 1871, provides that every ing account. On the dissolution this account was closed, and the debit balance officer “shall on his retirement be entitled in respect of such commission to was transferred to a new account, opened in the name of T. alone. On the receive on application to the Commissioners, the price or sum hereinafter men. opening of the new account B. and T. concurred in depositing the original tioned.” Bacon, V.C., held (29 W. R. 351, L. R. 16 Ch. D. 571), that the lease of the mills with the bankers, as a security for the balance which might, money remained the property of the Commissioners until the officer's retirefor the time being, be due to them by T. The deposit was accompanied by a ment appeared in the Gazetie, and that until that time the officer could not memorandum, signed by B. and T., which provided that B. should not be have drawn upon it, and that, consequently, no notice given by an incum. liable to the bankers in any way, except as concurring in the deposit, and that brancer before the publication of the retirement in the Gazette was of acy he was only a surety for T. In November, 1880, T. filed a liquidation pe:ition, avail. His lordship therefore held that the second and third incumbrancers, under which a trustee was appointed. At the date of the filing of the petition who gave their notices simultaneously as soon as possible after the publication a balance was dae by T. to the bankers. The bankers claimed to prove in the of the Gazette, were entitled to priority over the first inonmbrancer, wbose liquidation for the full amount of their debt, without making any deduction in notice was not given till several days later, and that as between the second respect of the value of their security. It was contended on their behalf that, and third incambrancers, their notices having been given simultaneously, inasmuch as B. would have had a right as against T. to insist on the applica- they must rank in priority according to the dates of their charges. The Court tion of the lease and fixtures in the payment of the debts of the firm, and in of Appeal (JESBEL, M.R., and BAGGALLAY and Lush, L.JJ.) affirmed this dethe bankruptcy of T. or of the firm the lease and the fixtures would have been cision.-SOLICITORS, Dod & Longslaf; Fladgate, Smith, & Fladgate ; S. Scott; administered as partnersbip assets, the security must be treated as a security, Hollams, Son, & Coward. not upon the separate estate of B. and upon the separate estate of T., but upon the partnership estate, and that, consequently, the bankers were not EVIDENCE_WITNESSES EXAMINED DE BENE ESSE, -In a case of Llanover v. bound to deduct the value of the security from their proof against Homfray, before the Court of Appeal on the 22nd inst., a question arose as to T.'s separate estate. The Court of Appeal (Jessel, M. R., and the admissibility as evidence in the action of an examination of witnesses de BACGALLAY and Lush, L.JJ.), affirming the decision of Bacon, C.J., hela bene esse taken in another suit. The action was brought by the lord of a that the value of a moiety of the lease and fixtures must be deducted from the manor to restrain customary tenants of the manor from working mines nader proof. JESSEL, M.R., said that the principle of the bankruptcy law was plain their tenements without the licence of the lord. The tenants alleged that there enough-viz., that a creditor could not be allowed to prove against the estate was a custom in the manor that the tenants should work the mines without of his bankrupt debtor, and, at the same time, retain a security for the debt, any licence from the lord, and they brought a cross-action to establish the which, if it were given up, would augment that estate.
custom. In the year 1815 some of the then tenants of the manor had com. the principle, and the only question was whether the security would, menced a similar suit against the then lord to establish the custom, and in that if given up, go to augment the estate. If the security was given by suit some old witnesses were examined de bene esse. The suit, however, was a stranger, it would not, if cancelled, go to augment the estate, and, dropped in the year 1819. The Court of Appeal (JESSEL, M.R., and therefore, it need not be given op. And the exception bad been extended to BAGGALLAY and Lush, L.JJ.) held that these examinations might be raad as the cases of a creditor of a partnership who beld security for his debt on the evidence in the present aotion, there being sufficient privity between the separate estate of one of the partners, and of a separate creditor of a partner, parties to the suit and the action. --SOLICITORS, Freshfields & Williams ; T. W. who held a security on the joint estate. But the exception had never been ex. tended any further. In the present case B. and T. each pledged his moiety of
Denby ; Field, Roscoe, & Co.; Ullithorne, Currey, f Villiers. the mill and fixtures to the bankers as a security for T.'s separate debt. The bankers got a security on the entirety, but it was the same thing as if there in a case of Harlock v. Ashberry, before the Court of Appeal on the 23rd
APPEAL, SECURITY FOR Costs_POVERTY OF APPELLANT-ORD. 58, R. 15. joint security: Whatever rights the joint creditors might have had against the inst., the question arose whether the mere poverty of an appellant is a sufficient property, if their debts were unpaid, could not affect the rights of the bankers reason for requiring him to give security for the costs of bis appeal. The defendagainst the mortgagors. They had not in fact been made bankrupts. There ant had given notice of appeal from the judgment of Fry, J. (29 W. R. 887, L. R. was no foundation at all for the argument. BAGGALLAY and Lusu, L.JJ., 18 Ch. D. 229, 25 SOLICITORS' JOURNAL, 640), and the plaintiffs applied for an concurred.-SOLICITORS, Jaques d Layton; Van Sandau & Cumming.
order that she should give security for the costs of the appeal. They filed an affi. davit in support of the motion, in which they deposed that in their belief the
defendant was in very poor circumstances, and totally unable to pay the MORTAGEB_EQUITABLE MORTGAGE_GETTING IN LEGAL Estate-RIGHT: plaintiffs' costs of the appeal in case it should be decided against her. The A8 AGAINST PRIOR EQUITABLE MORTGAGEE_Notice.-In a case of Harp. defendant did not answer this affidavit
, but it was urged on her behalf that ham v. Shacklock, before the Court of Appeal on the 18th inst., a question the court had never yet held that the niere poverty of an appellant was of arose as to the right of an equitable mortgagee of land to avail himself of the itself a sufficient ground for requiring bim to give security for the costs of his legal estate which he had got in, so as to obtain priority overan other equitable appeal. The court (JESSEL, M.R., and BAGGALLAY and Losu, L.JJ.), however, mortgagee, whose security was prior in date. There was a legal mortgage of held that the appellant must give security, and fixed the amount at £30. JESSEL, land, and three subsequent equitable mortgages. The fourth mortgagee, when M.R., suid that the practice had been for some time settled that an appellant who he advanced his money, had no notice of the second and third mortgages. was unable, by reason of his poverty, to pay the respondent's costs of the The first mortgagee having been paid off, conveyed the legal estate in the appeal
, if it should prove unsuccessful, must, if the respondent asked for it, property to the fourth mortgagee, who at that time had notice of the second give security for the costs. It must be remembered that under the old practice and third mortgages. It was not, however, shown that the first mortgagee of the Court of Chancery every appellant was compelled to deposit £20. Lush, bad, when he execated the conveyance, any notice of the second and third L.J., said that the practice of both the Court of Chancery and the courts of mortgages. The Coort of Appeal (JessEL, M. R., and BAGGALLAY and Lush, common law as to security for costs had been altered by the Judicature L.JJ.) held that the fourth mortgagee was not entitled to avail himself of the Rules, and it was now left to the discretion of the Court of Appeal whether, legal estate against the second and third mortgagees, but that the second, third, ander special circumstances, security for the costs of an appeal should be and fourth mortgages must take priority in the order of their dates.
required, and it had been held that poverty, or inability to pay the costs (This decision appears to break down in some degree the authority of previous of the appeal was a special circumstance” within the meaning of rule 16 of decisions as to the protection given to an equitable mortgagee who gets in a
order 58. The right of appeal was, consequently, to this extent, not an legal estate from a trustee who has no notice of prior equitable mortgages, but absolute right.-SOLICITORS, T. A. Bartlett ; Gregory, Rowcliffes, g Rawle. it seems to carry out the view expressed by the late Lord Justice James in the case of Pilcher v. Rawlins (20 W. R. 281, L. R. 7 Ch. 268), where he said, APPBAL-EXTENSION OF TIMB-ORD. 58, R. 15—COMPANY_WINDING UP"Those cases where the person seeking the conveyance knew the fact that the Rule OF STANNARIES Court.-In a case of In re The Frank Mills Mining Company, before the Court of Appeal on the 23rd inst., an application was a case of Anderson v. Liebig's Extract of Meat Company (Limited), befyre made to extend the time for bringing an appeal. One of the grounds alleged Chitty, J., on the 18th inst., a motion was made to restrain the defendant was that the applicants had not had an opportunity of appealing to the Vice company from issuing and circulating among the customers of the plaintiff or Warden of the Stannaries Court from the order made by the registrar. By the the public any lettera, circolars, or communications stating that the use by rules of that court eight days are allowed for bringing such an appeal, and the plaintiff, or any person selling his goods, of the words “ Baron Liebig" the Vice-Warden had confirmed the registrar's order by signing it the day and a photograph of the late Baron Liebig on the pots of the extract of meat after it was made. The Court of Appeal (JESSEL, M.R., and BaggalLAY and sold by the plaintif or any customer was unauthorized, and from threatening LUSH, L.JJ.) said, that though it would be better that the Vice-Warden proceedings against persons selling Liebig's extract of meat as supplied by should not sign an order of the registrar until after the expiration of the eight the plaintiff unless such persons undertook to discontinue the user of the said daye, his signing it within the time could not deprive a party of the right of words and photograph. The plaintiff commenced manufacturing and selling appeal given to him by the roles. Another objection was that the rules of extract of meat in August last, and he used the words "Baron Liebig's the Stannaries Court require that notice of an appeal to the Court of Appeal Extract of Meat" on bis capsules, and also a wrapper round the pots with a should be served on the registrar of the court at the time when the appeal photograph on it of the late Baron Liebig. The defendants have manufactured notice is given, and that the applicants
had been unable to serve notice on the and sold the original Liebig's extract of meat as made by Baron Liebig for registrar in proper time, because bis office was closed and he was absent on the last twenty years. On the 4th of October last, the defendants' solicitors his vacation as fixed by statute. The applicants had not given any notice to wrote a letter to the plaintiff stating they had been consulted by the repretheir opponent within the proper time. The court said that the requirement sentatives of the late Baron Liebig and the company with reference to the that notice should be given to the registrar was only directory, and no penalty use of the words “Baron Liebig': Extract of Meat,” and the photograph was attached to the pot giving of the notice. The object of the notice was on the extract of meat sold by the plaintiff, and they stated that such aser that the registrar should send the necessary papers to the Court of peal. was unauthorized by their clients, and was calculated to mislead the public into The Court of Appeal would not refuse to hear an appeal because the notice to the belief that they were purchasing the defendants' extract, and that unless the registrar had been omitted, and the rules of the Stannaries Court could
the plaintiff would undertake to discontinue the user proceedings would be not alter the Judicature Rules as to appeals. The application was refused.- commenced. On the 5th of October the plaintiff replied, and declined to give SOLICITORS, Gregory, Rowcliffes, & Co.; Coode, Kingdon, f Cotton.
any undertaking. Some further correspondence ensued, and on the 31st of
October the defendants commenced an action to restrain the plaintiff from SOLICITOR-Costs_TAXATION – LIEN ON CLIENTS' PAPERS.-In 3 case of the action the plaintiff had discontinued the user of the words “Baron Liebig,
iufringing their trade-mark and labels, and from any piracy of their goods. Since In re Chatterton, before the Court of Appeal on the 23rd inst., a question and had also changed the photograph ; be, however, asserted a right to use such arose as to the lien of a solicitor for costs upon his olients' papers. On the words, and sell the residue of his stock'now on band. It appeared that the solici. application of several persona, the common order was made to tax the costs tors of the defendant company had sent various letters to customers of the plain. due from them to their solicitor, and for delivery up to them by the solicitor tiff stating that the user of the above words and photograph was an infringement of the papers belonging to them on payment of what should be found due to of their rights and threatening proceedings unless such user was discontinued. bim. *AD order was subsequently made for delivery up of the papers In several cases the defendants had followed up their notices by commencing on security being given for the costs, and it was then objected by the solicitor actions against the plaintiff's customers. The defendants had also given that he had a lien on the papers for costs due to him by each of the clients notice to ihe persons selling the plaintiff his capsules, and the plaintiff was separately. The court (Jessel, M.R., and BAGGALLAY and Lush, L.JJ.) obliged to obtain bis capsules from France. It was also allozed that in conbeld that the objection was untenable. JESSEL, M.R., said that the objection sequence of notice from the defendants the Castom House officials had decliood was one that ought to have been raised to the original order. If the
to allow the plaintiff's capsules to pass. The plaintiff, on November 4, comsolicitor wished to assert a lien in respect of separate costs due to him by bis
menced this action to restrain the defendants from giving any further notices, clients, he ought to have applied to have the order altered. But, as he had and for damages. He now moved for an interim injunction. The plaintiff ebosen to go in under it, he could not now raise the objection, but must deliver alleged that before the trial of the defendants' action bis trade was being ruined up the papers on security being given for the costs jointly due to bim by the by them, and that the object of the notices was not bona fide, but rather to crush clients.--SOLICITOR, W. Kowland Jackson.
the plaintiff. It was also contended that the defendants should have moved for
an injunction in their action. CHITTY, J., said there were two points to be con. SPECIFIC PERFORMANCE-AGREEMENT TO GRANT LEASE-UNCERTAINTY
sidered : whether the notices given by the defendants had been bona fide and TIME FOR COMMENCEMENT OF LEASE NOT STATED-STATUTE OF FRAUDS.
true in fact, and if untrue in fact, whether the court would interfere. On In a case of Marshall v. Berridge, on the 19th inst., the Court of Appeal the first point be was of opinion that the notices were perfectly bona fide, and (JESSEL, M.R., and BAGGALLAY and LUSH, L.JJ.) overruled the decision of that there was no malice on the defendants' part. The strongest evidence of their Fry, J., in the recent oase of Jaques v. Millar (25 W. R. 846, L. R. 6 Ch. D. bona fides was that they had followed up their notices by an action against 153). In that case specific performance was enforced of an agreement to grant the plaintiff
, and also against several of his customers. Moreover, as far as he
He did not think a lease which did not fix any time for the commencement of the term, Fry, J., could see, these actions were being diligently prosecuted, holding that, in such a case, the term was to commence from the date of the any statement made by the defendants in their notices had been untrue, and
The fact that the defendant company agreement. In so deciding be relied upon the case of Doe v. Benjamin (9 A. there was no ground for the motion. & E. 644), and thought that the case of Blore v. Sutton (3 Mer. 237) was
had not chosen to move for an interlocutory, injunction was not a sufficient distinguishable, on the gronnd that it did not appear from the report that the ground for the present motion. On the whole the motion inust be dismissed, memorandum of agreement bore the date of the day upon which it was actually and the costs would be costs in the action.-SOLICITORS, Fluz & Co.; W. A. sigoed. The Court of Appeal, however, pointed out that Doe v. Benjamin was
Crump & Co. decided before the passing of the Act, 8 & 9 Vict. c. 106, and wben, therefore, an agreement to demise could operate at law as an immediate demise. And the court sent for the record of Blore v. Sutton, from which it appeared that PRACTICE-DISMISSAL OF ACTION AGAINST DEFENDANT-MOTION BY SUCH the agreement in that case did, in fact, bear the date of the day on which it DEPENDANT_Right to SUBSTANTIVE RELIEF.-In a case of Huntley v. was signed. The court accordingly, reversing the decision of Fry, J., in Mar. Link, also before Chitty, J., on the 18th inst., a motion was made by a shall v. Berridge, refused to grant specific performance of an agreement to defendant that a co-defendant should be ordered to deliver over to him certain grant a lease, on the ground (inter alia) that the agreement did not state any securities the subject of the action. The moving defendant had been dismissed time for the commencement of the term.-SOLICITORS, Hunters, Gwatkin, $ from the action on the 8th of July, 1881. CAITTY, J., was of opinion that when an Co.; Hacon f Turner.
action had been dismissed against a defendant he could have no substantive
relief in the action after that date. The liberty to apply only gave the DEED-CONSTRUCTION-PARCELS–GENERAL WORDS.--In a case of Willis defendant a right to come to the coort to enforce the terms of the order itself, 5. Watney, before Fry, J., on the 21st inst., a question arose as to the proper such as where there was an inquiry as to damages given by the order, or where, coastraction of general words in a deed. The owner in fee simple of a house, for instance, a fuod in court was ordered to be paid to him. The motion must wbo was also the owner in fee simple of a moiety of an adjoining stable-yard,
be dismissed, with costs.-SOLICITORS, Kay g Co.; Green & Cheese. conveyed the house to the plaintiff by a description, which did not include the moiety of the yard. Bat the deed contained the following general words :“ Together with all buildings, erections, fixtures, commons, yards, trees, bedges, ditches, fences, walls, ways, waters, watercourses, liberties, privileges, RACEHORSE-QUESTION AS TO OWNERSHIP-RECEIVER—FORM OF ORDERessements, advantages, and appurtenants whatsoever” to the house apper. PRACTICE.-In a case of Boynton v. Green, also before Chitty, J., on the 18th taining, &c. It was contended that the moiety of the yard did not pass under iost., a motion was made by the plaintiff to restrain the defendant from the deed, and that under the general word " yards," nothing but an easement running a racehorse in the latter's name or for the appointment of the plaintiff could pass. It was said to be the opioion of conveyancers that general words as receiver of the horse. The defendant was a trainer of racehorses, and he are only applicable to easemente. Fry, J., was of opinion that general words, alleged that when the horse was sent to him to be trained the arrangement like all other words, must be construed according to their meaning, And was that he was to be entitled absolutely to half the property in the horse. in this case the deed contained eighteen general words, one of them being the The plaintiff
, on the other hand, alleged that the defendant was only to be word “ easements." If general words could pass only easements, then the other entitled to half the profits of racing the horse. The horse bad run in the seventeen words would be inoperative. Moreover, the grantor had the fee defendant's name, but the plaintiff objecting to allow the same for the future simple of the moiety of the yard, and could not have an easement over his own now brought this motion. Chitty, I., was of opinion that there was a ques. property. He might, no doubt, have created an easement over it, but he did tion to be tried as to the ownersbip of the horse, and therefore he appointed not profess to do that. He could not by the deed pass that which he had the plaintiff receiver and manager of the horse until the trial, without salary, Dot himself.-SOLICITORS, Shum, Crossman, g Co.; C. P. Deane.
and directed that a sum of £100 in court should be treated as security for his recelvership. He said that the plaintiff must also undertake not to sell or
deal with the horse until the trial, except to race and train it. The order TRADE-MARK —ACTION TO RESTRAIN INFRINGEMENT—CIRCULARS TO Cus- would be in the form given in Seton, p. 411.-SOLICITORS, Collyer.Bristow, TOMERS OF INFRINGER—INTERLOCUTORY MOTION-SLANDER OF TITLE.—-In Withers, & Russell ; Ullithorne, Currey, & Villiers,