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Chancery Division and introduce the pleasing novelty of numerous victed of an indictable misdemeanor under this Act, is liable to unopposed appeals.
be kept in penal servitude for seven years." The effect of these two sections is, therefore :
1. That simple larceny followiog upon a felony may have an additional
punishment; LOOKING TO THE BARITY of prosecutions for blasphemous libel,
2. That simple laroeny following upon an indictable misdemeanor may much legal interest will attach to the proceedings against the have an additional punishment: Freethinker. It is beyond question an indictable misdemeanor 3. That a misdemeanor punishable like simple larceny, and following upos at common law to blaspheme against God, Christianity, or Holy an indic-able misdemeanor, way have an additional punishment. Scripture (R. v. Woolston, 2 Str. 834; R. v. Waddington, 1 B. & But it is not provided C. 26); but in R. v. Woolston the court expressly excluded dis
4. That a misdemeanor popishable like simple larceny, and following upon putes between learned men upon particular points, and it may be a felony, may have an additional panishment. a question what degree of scurrilousness must be reached to con. Under a subsequent statute this casus omissus was provided for, stitute the common law offence. The statute law, however, is it being enacted by 27 & 28 Vict. c. 47, s. 2, that, “ Where any somewhat more explicit. Reviling the Sacrament is punishable by fine under 1 Ed."6, c. 1; publicly ridiculing the Prayer Book person shall
, on indictment, be convicted of any crime or offence
punishable with penal servitude, after having been previously also by fine under 1 Eliz. c. 2, a third conviction under the latter convicted of felony, the least sentence of penal servitude that can statute entailing imprisonment for life; and for a person who has be awarded shall be seven years,” and Kelly, C.B., in R. v. been educated as a Christian to “ deny the Christian religion to be Deane (L. R. 2 Q. B. D. 305;, held that under this section a true, or the Holy Scriptures of the Old and New Testament to be
prisoner convicted of obtaining money under false pretences, after of Divine authority,” is an offence punishable, upon a first con
à previous conviction for felony (the previous conviction being riction, by deprivation of any office, ecclesiastical, civil, or charged in the indictment), could not be sentenced to less than military, held by the offender, and upon a second conviction by
seven years' penal servitude. Were this section still in force the disability to “ sue, prosecute, plead, or use any action or informa
would have remained filled.
gap tion in any court of law or equity, or to be guardian of any child, reduce the minimum penalty of seven years' penal servitude pro
But the Legislature, wishing to or executor of any person, or capable of any legacy or deed of vided by this section, and labouring apparently under the impresgift,” and also by imprisonment for three years, which term of sion that it merely fixed a minimum penalty, repealed the imprisonment, in addition to a fine of £1,500, was the sentence section by 42 & 43 'Vict. c. 55, s. 1, and the commonly received upon RICHARD CARLILE : see Reg. v. Carlile (1 B. & Ald. impression appears to be, that the intention of the Legislature
, 161), in which Best, J. pointed out that the statute did not that of simply permitting a lesser punishment to be given, was abrogate the common law; that the Legislature in passing it “ had the only effect of this fresh enactment. Its real effect was, however
, not the punishment of blasphemy so much in view as the protec- clearly much more sweeping, its repeal having thrown us back tion of the Government of the country, by preventing infidels from into the position we were in before that is, with no additional getting into places of trust,” and that the Act "extends to those penalty for a misdemeanor (punishable like simple larceny), fol
. who, in the most private intercourse, by advised, conver- lowing upon a felony. Consequently to charge a prisoner, who is sation, admit that they disbelieve the Scriptures." Other statutes bearing on the subject are 1. Geo. 4, c. 8, which misdemeanor punishable like simple larceny, with a previous
indicted for obtaining money under false pretences or any other empowers the court before whom a verdict against a person for conviction for felony is no longer of any use, indeed only mispublishing a blasphemous libel shall be given to make orders for leading, as it may cause a mistake to be made as to the amount of the seizure of all copies of the libel ; 5 & 6 Vict. c. 38, which punishment which can be given for such an offence.
blasphemies and offences against religion " from the jurisdiction of quarter sessions; and in especial connection with the proceedings against the Freethinker, which is a newspaper,
IT IS the recent Newspaper Libel and Registration Act, 1881 (44 & 45
THE FACT, as has been stated in connection Vict. c. 60). By section 5 of this Act “no criminal prosecution with the presentation of the Annual Report of Temporary shall be commenced against any proprietor, publisher, or editor, Bills, that the practice of passing temporary Acts is of or any person responsible for the publication of a newspaper, for modern date only. The practice is a very old and frequent one, any libel published therein without the written fiat or allowance dating at least as far back as 7 Ric. 2, c. 17, whereby “ main. of the Director of Public Prosecutions; and by section 6 every libel pernors shall satisfy the plaintiff for his deluy, where the defendis to be deemed to be an offence within the Vexatious Indictments ant keepeth not his day”-a statute which was permitted to Act (22 & 23 Vict. c. 17), whereby no indictment for the offences expire. In a long series of cases the temporary Acts were contherein mentioned may be presented unless the prosecutor has tinued in a bunch by a statute differing only in form from the
modern“ been bound over to prosecute, or the accused has been committed
Expiring Laws Continuance Act': see, for instance, by a justice of the peace, or the accused has been bound over to
5 & 6 Ed. 6, c. 17; 7 Ed. 6, c. 11; 1 Mar. Sess. 3, c. 12; 13 Eliz. appear at the trial, or the consent of a judge or the Attorney-cautious mode of legislation confined to measures of small conse
c. 25; 27 Eliz. c. 11; 35 Eliz. c. 7; 39 Eliz. c. 18. Nor was this General has been obtained to the indictment being preferred.
quence. The Poor Law Act of Elizabeth, the Statute of Distri
butions of James the First, and the Statute of Frauds of Charles IN A case of R. v. Crook, tried at the recent Dorset Quarter be remarked, in connection with the subject, that both the Ballot
the Second, were all temporary Acts in the first instance. It may Sessions, a curious pitfall for unwary magistrates came to light. Act, 1872, and the Employers' Liability Act, 1881, owe their The prisoner was tried for, and convicted of, obtaining money temporary character to amendments inserted in the House of under false pretences, and the bench, considering it to be a gross Lords. case, were inclined, upon the strength of a previous felony being charged in the same indictment, to pass a sentence of seven years' penal servitude. As, however, some question was raised as to A MELANCHOLY EVENT occurred on Saturday last in the Royal whether they had power to do this, the bench eventually decided Courts of Justice. Mr. Murdock, who was well known about to disregard the previous conviction, and accordingly sentenced the the legal offices, and had been for many years in the employment prisoner to five years' penal servitude, the maximum penalty for of Messrs. FladGate, of Craven-street, Strand, fell down lifea first offence. There can be no doubt that they were right in so less in the building of the Royal Courts of Justice
. In spite doing. By section 7 of 24 & 25 Vict. c. 96, it is enacted that, of endeavours to find a place to which it might be removed, the * whoever commits the offence of simple larceny after a previous body had to remain in the building until an inquest could be held
. conviction for felony, is liable to be kept in penal servitude for Mortuaries
exist in many localities in London, but in this instance ten years,” and, under section 8, it is enacted that, “ whoever neither that at St. Clement's Danes nor that at St. Mary-lecommits the offence of simple larceny, or any offence hereby made Strand were available, probably because the place of decease was punishable like simple larceny, after having been previously con- out of the parish,
before, it hardly seems that in the case of contractual obligaSET-OFF IN CASE OF MUTUAL tions properly so called the term “mutual can be thus reDEALINGS.
stricted. Suppose a case were to arise in which the trustee sued for
the price of goods sold by the bankrupt to the defendant, and the The case of Jack v. Kipping (L. R. 9 Q. B. D. 113) illustrates defendant sought to set off unliquidated damages for a fraudulent very strongly the great alteration of the law effected by the representation by the bankrupt on the sale of other goods. This Bankruptcy Act of 1869 with regard to mutual dealings between would be a step further than the case of Jack v. Kipping. Would the bankrupt and persons indebted to the bankrupt's estate. the same reasoning apply? It seems to us that, by analogy to Under the previous statutes relating to bankruptcy set-off was the case of mutual debts and credits, it ought to do so. But it is allowed in taking the account when there had been mutual obvious that if this be held to be the case, the alteration effected credits. The expression “mutual credits," as is well known, was by the introduction of the term “mutual dealings” is of a very construed by the courts to apply only to cases where there had sweeping character. It was held under the earlier Acts that a been mutual credits of such a nature as to terminate in debts; but liability could not be set off unless it was proveable under the this construction excluded cases of unliquidated damages. The bankruptcy. By the 31st section of the Bankruptcy Act, 1869, term “mutual dealings” was used in the Act of 1869, and it is demands in the nature of unliquidated damages, arising otherwise now settled, by the decision in the case of Peat v. Jones & Co.than by reason of a contract or promise, shall not be proveable in (L. R. 8 Q. B. D. 147), that this term allows a set-off of un- bankruptcy. Can the liability to unliquidated damages for a liquidated damages arising under a contract against a debt due to fraudulent representation be said to be a demand arising by reason of the estate of the bankrupt. In that case the trustee in bankruptcy a contract or a promise ? It seems to us a great stretch of the words sued for the price of iron delivered, and the defendant counter- | to say so. No doubt the damages would not arise but for the claimed for damages for the non-delivery of iron under the same subsequent making of the contract, but still it hardly seems to us contract. It might, perhaps, be argued that it was an essential that such damages can, within the natural meaning of the words, feature in this case that the claims both arose out of the same be said to arise by reason of a contract or promise. If such contract. We doubt, however, whether the principle of the deci- damages would not be proveable, then the effect of the decision in sion would not apply even where the claims arose out of different Jack v. Kipping would be that proveability is no longer the test transactions. The language of Brett, L.J. , seems to go beyond whether the liability can be set off
. It may, as it appears to us, the case of cross-liabilities arising out of the same contract. He be very fairly argued that such damages ought to be proveable; says, “ It seems to me that the expression mutual debts and the question how the liability is to be proved is a mere question credits' was intended to comprise all ordinary transactions between of machinery, and there seems no reason why a person who has a the two persons in their individual capacities, and that mutual | just claim against the bankrupt for such damages should be dealings' was added to get rid of any questions which might arise deprived of all share of the bankrupt's assets, and left to pursue whether a transaction would end in a debt or not." It may be his claim against the bankrupt after he has been deprived of all said that the hardship would be greater if a debtor was obliged means of satisfying such claim. We think it probable that various to satisfy in full his liability upon a contract while only difficult questions which the decision in Jack v. Kipping suggests getting a percentage upon the liability to him arising on the same may turn up hereafter unless a new Bankruptcy Act is passed transaction; but, after all, it does not make much difference in the next session, containing provisions dealing more explicitly with hardship of the case whether the cross-liabilities arise on the these matters. same or different contracts, and it must be observed that the term “mutual,” as employed in the phrase “ mutual credits" in former Acts, did not imply any such restriction as that we refer to, and ARE LEASEHOLDS WITHIN SECTION 18 it therefore can hardly be supposed to do so in the phrase
OF THE CONVEYANCING ACT? “ mutual dealings.” It would, therefore, seem that the decision in Peat v. Jones establishes the proposition that the debtor to the The decision of the Court of Appeal in In re Hall Dare's Conbankrupt's estate can set off against his liability any liability to tract (supra, p. 371), and the appearance of a section in the new unliquidated damages arising upon any contract by the bankrupt Conveyancing Bill to amend section 65 of the old one, have made with him.
it more difficult to pooh-pooh criticism as mere hair-splitting, and In Jack v. Kipping, as it appears to us, a much longer stride the suspicion is not unreasonable that some further revelations was taken than by the decision in Jones v. Peat. The action may be in store for the profession. The question at the head of there was by the trustee in liquidation for the price of shares in this article is one that cannot fail to be asked; and we should be a company sold by the liquidating debtor to the defendant, and very grateful to anybody who will give it a satisfactory answer. the defendant counter-claimed damages for a fraudulent repre- Section 18 begins with the words “A mortgagor of land”; sentation, whereby the defendant was induced to buy the shares. and the powers of leasing conferred by the section upon mortIt was held that he could do so under the “mutual dealings' gagors and mortgagees in possession are confined to mortgages of clause of the Bankruptcy Act of 1869. It seems to us that this land. decision is according to the obvious justice of the case. We think A mortgagor can of course only mortgage what he has got, that the law ought to be, and we hope that it is, as laid down by It is part of the alphabet of the law, as the reader hardly needs this decision, but we think it nevertheless a somewhat strong to be reminded, that no one in England can possess land decision. Cave, J., in giving judgment, said: “We are of absolutely, as he may possess a chattel. A man can have no opinion that the case is governed by Peat v. Jones & Co., and that more than an estate or interest in the land, and this, therefore, is he is so entitled on the ground taken by the Master of the Rolls, what, if a mortgagor, he must mortgage. The question, therethat a contract of sale and purchase is in its nature mutual, fore, is, What estates and interests in land are, within the meanimposing reciprocal obligations on the vendor and purchaser, and ing of section 18, comprised under the word land ? that consequently claims arising out of that contract are mutual The reader will, of course, turn to the interpretation clause, dealings within the statute. It seems to us that it would be section 2, where he will find these words :inequitable to hold that where a purchaser has had an article, “(ii.) Land, unless a contrary intention appears, includes land of any which turns out to be worthless, palmed off on him by fraudulent tenure, and tenements and hereditaments, corporeal or incorporeal
, and houses misrepresentations, and the vendor has become bankrupt, he should and
other buildings, also an uudivided share in land.” be compelled to pay the agreed price to the trustee and be left to That this extensive conglomeration was put together without recover back as much as he can in the shape of a dividend. It any pressing necessity, and with no clearly formed intention of is said that such a fraudulent misrepresentation is a tort, but we relying upon it, sufficiently appears from the following remarks, think that it is not a personal tort, but a breach of the obligation which we extract from the very friendly commentary of Messrs. arising out of the contract of sale."
Clerke and Brett : “ Numerous examples of the expression" It is to be observed that the words thus used seem [land] “ being used with a restricted meaning occur throughout to rely to some extent on the fact that the cross-liabilities the Act. Thus, incorporeal hereditaments are excluded by a both arose out of the same transaction ; but, as we have said reference to possession, actual occupation or entry, in sections 18, 42, and 44 ; 'copyhold or customary land' is expressly excepted power mentioned in the note might possibly be meant only the by section 34 (3), from the operation of that section; the expres- statutory power of sale, which is not in dispute.
If this seems to sion freehold land’ is used in sections 50, 62; land of inheri- be a forced interpretation, as no doubt it is, we can only reply, tance' in section 58 ; and .freehold or leasehold land' in section that it is not a bit more forced than some interpretations which 26. Lastly, in sections 30, 49, part of the definition, tenements we have seen of some passages in the Conveyancing Act itself.
our that words of any tenure' being omitted, probably with the intention leaseholds will have to be dragged in somehow, and that the judges of excluding copyhold and customary land from the scope of will have to invent a way to do it. This may, perhaps, be the those sections" (2nd ed., p. 23). For our own part, we are not correct view; and if it is, nothing remains for us to do but to aware of any passage whatever in the Act where the whole of await with respectful curiosity the exegetical method which is to the medley is indisputably included.
solve our perplexity. And if this shall turn out to be such as, in But, on the present occasion, instead of complaining of its super- the opinion of men of sense and discretion, may, without improfluity, we are doubting whether, in spite of its huge scope, it has priety, be applied to the interpretation of important statutes upon not omitted something which, as most of our readers will prob- highly technical subjects, this will be to us a source of no less ably think, ought to have been included beyond all possibility of satisfaction than surprise. a doubt. Does "land" include “a term of years" ? and, therefore does “ a mortgagor of land" include“
a mortgagor of a term of years ” ? and can section 18 be relied upon to give powers of leasing in the case of mortgages of terms of years, commonly called
REVIEWS. mortgages of leaseholds ?
Let us, in the first place, ascertain what estates and interests the word "land" does include. It undoubtedly, by virtue of the
CONVEYANCING. interpretation clause, includes all estates of freehold. For estates Hayes' Concise CONVEYANCER, WITH PRECEDENTS ADAPTED TO THE New of inheritance in possession are included under corporeal heredita
CONVEYANCING ACT. FOURTH EDITION. By W. B. COLTMAN, Esq., ments; estates of inheritance in remainder, or reversion, are
Barrister-at-Law. H. Sweet. included under incorporeal hereditaments; while estates for life
[First Notice.] and estates pur autre vie, though they are not hereditaments, are
The greatly reduced size of this edition of Hayes is not solely, or per. included under tenements.
haps mainly, due to the effect of the Conveyancing Act. The whole of Now what do we find in the interpretation clause to bring a the long summary of stamp laws has been omitted, and the tables of term of years within the meaning of land? Can it be by virtue former and presept stamp duties have been relegated to the appendis, of the phrase, “ land of any tenure"? We think not. In the and cut down from fifty pages to eight pages. The long chapter on sucfirst place, this phrase is commonly used to refer to freeholds, cession duties; the disquisition on composition deeds, and the prececopyholds, and customary freeholds'; phrases which have nothing dents of those deeds which appeared in the last edition have been to do with terms of years. In the second place, if we were criti- the book bas been brought into a very handy and convenient size, withcising the utterances of an ordinary person, we should interpret out any diminution of its practical utility, the decree,“ land shall include land of any tenure,” to mean that, In a new edition of a work which was originally designed as a manual notwithstanding any peculiarities in the tenure by which certain of concise conveyancing it is to be expected that the implied provisions lands here and there may happen to be held, and which might of the Convoyancing Act will be adopted to the fullest extent compat. present some obstacles to the taking effect of parts of the Act, ible with safety. But Mr. Coltman's treatment of that Act contrasts yet such parts shall, nevertheless, take effect in spite of the very favourably with that of certain learned authors on whose producobstacles presented by the peculiariti-s aforesaid, which shall be, tions we recently had occasion to comment. He does not take the simple so far, over borne by the authority of the Act. We do not pre- criticism or question. He is friendly to the Act, but, nevertheless, a can:
course of adopting the Act wholesale, and stating its provisions without tend to know whether this is the meaning of the Act; because it did friend. Thus (to cite only a few of his criticisms), he points out (p. 1) may possibly have picked the phrase up (as it seems to have that the definition of the term conveyance " " is not very happily picked up some others) without perhaps fully considering where expressed, as at first sight it seems that it is only a covenant to surrender the phrase came from and what it was designed to mean. But, that is required to be made by deed.” Again, he says (p. 14) that the not having any authority to insert words into the Act's defini- expression in section 7, a person who conveys and is expressed to con. tions, we must hesitate to take “ land of any tenure” to mean
vey as beneficial owner" " is not very happily chosen, as it would convey any estate ur interest in land of any tenure”; especially as to voy are or are not to be read as parenthetical. In the former case, it
two distinct meanings, according as the words' and is expressed to con. do so would practically deprive the rest of the verbose definition would seem to be necessary (in order to bring the case within the statute) of such raison d'étre as it can be said to possess.
that the person conveying should actually be, as well as be expressed to The rest of the definition seems to give us no help whatever. be, the beneficial owner; while, in the latter case, it would be Nobody, we believe, has ever pretended that a term of years is a sufficient if a person, who purports to convey, is expressed to convey tenement; and to style a term of years a hereditament would be a
as beneficial owner whether he be beneficial owner or not." With manifest self-contradiction. Nor does a term of years seem to be regard to general words, he says, “It certainly would not be an undivided share of land. So that we begin to feel, with act would not. Under these circumstances it may, perhaps, be thought a house or a building; and still less, if possible, does it seem to be difficult to suggest cases where the old form of words would be humility, that we are at a loss to guess by what process these advisable to retain the general words' clause in all cases where the sala reluctant sheep are to be dragged into the fold.
is in lots or the vendor retains any land adjoining the part sold.” And We are quite aware that these doubts are not shared by (or with regard to the provisions of the Act as to mortgages Mr. Coltwas perhaps we should rather say, have never occurred to some makes some criticisms of considerable importance. eminent persons, whose deliberate judgment would be entitled to (1), providing that " a mortgagor of land while in possessioa shall, as great weight. At vol. 1, p. 517, of the last edition of the Pre- against every incumbrancer, have, by virtue of this Act," power to lease, cedents of Messrs. Prideaux'and Whitcombe, there is a “ mortgage women incumbranter to an incumbrancer claiming under an incumbratis of property comprised in several leases by assignment,” which
con- created after the passing of the Act ; that under sub-section (9) of this tains an express power of sale and leasing ; the insertion of the section a lease for ninety-nine years 'may be granted to any person who express power being explained
(p. 518) by the following foot-has, at any period, however remote, built upon the land to be leased, and note :--- As this power of sale and leasing is somewhat special, it that presumably the rent would be the value of the land before it ons is retained instead of relying on the statutory power.” The infer- improved; that apparently under sub-section (12) of this section 8.com: ence seems plausibly to follow that, in the opinion of those tract for a lease once entered into by the mortgagor cannot be varied o. learned editors, the statutory power of leasing might have released without the consent of every incumbrancer, and that the proper been relied on in a mortgage of leaseholds
. But we cannot attach vision of sub-section (14) must be taken with some qualification, for any great importance to so very casual an expression of opinion. fine, it can hardly be intended that such a lease should be binding parts Indeed, we do not pretend to be quite sure that any opinion about prior incumbrancer, yet it is provided by the sub-section that “ powers the power of leasing has been expressed; for by the statutory so conferred shall be exercisable as far as may be as if they
Thus, on section 18
ferred by this Act," and if the power referred to had been inserted in business, or residence of the person making the same, or his or the Act it would clearly have been binding on the prior incumbrancer. her attorney, within the limits aforesaid (ten miles of Serjeants'. Mr. Coltman concludes, as the profession has generally concluded, that, inn Hall). The Judicature Act, 1873, section 82, enacts that " every “it is hardly probable that mortgagees will consent to the mortgagors person who, at the commencement of this Act, shall be authorized to exercising the statutory powers of leasing, except in very special cases. administer oaths in any of the courts whose jurisdiction is bereby transHis form of clause excluding this power contrasts favourably, in point of ferred to the High Court of Justice, shall be a commissioner to administer terseness, with some of the elaborate provisions we have seen inserted in oaths in all causes and matters whatsoever which may from time to time mortgages with this object. It is as follows :
be depending in the said High Court, or in the Court of Appeal.” Since “ Provided always, that [mortgagor] shall no', without first obtaining the that Act came into force I, in common, I believe, with all other comconsent, in writing, of (mortgagee), his execators, administrators, or assigos, missioners, have always been under the impression that the “commisaxercise any of the
powers vested in mortgagors by the Conveyancing and Law sioner to administer oaths in the Supreme Court of Judicature” is em of Property Act, 1881, or any other statutory power for the time being powered to take affidavits in any place where the Supreme Court has exeroisable by mortgagors.'
jurisdiction. Judge my surprise, however, when I was informed by a The foregoing will show the judicious manner in which Mr. Coltman gentleman, a late clerk of mine, whom I swore to an affidavit in the has dealt with the provisions of the Conveyancing Act. He has adopted solicitors' waiting room in the Royal Courts of Justice, where we were the convenient plan of inserting before each class of precedents the pro- both upon business, that the affidavit had been rejected by "the official visions of the Act relating to them, with explanatory and critical remarks. at the Royal Courts, with the observation “the gentleman had better mind We do not always agree with his conclusions, but his remarks are acute, or he will lose his commission." practical, and instructive. The same may be said of the foot-notes
Now, Sir, my obvious answer to this is, that the old commissions have throughout the work. We propose hereafter to consider the precedents already gone, and that I am now acting under the Judicature Act, which, and other features of the volume.
in my humble opinion, does not limit the commissioners' powers to
place of business." If otherwise, I would ask, what is the effect of all
affidavits not sworn at the "place of business" : e.g., at liquidation meetREAL PROPERTY.
ings and the like, and which have, hitherto, been received in evidence ? PRINCIPLES OF THE LAW OF Real Property. By the late Joshua Royal Courts of Justice, where the commissioner was, as a solicitor, upon
Assuming " the official " is right in his contention, then is not the WILLIAMS, Esq., Q.C. THE FOURTEENTH Edition (incorporating the Conveyancing and Law of Property Act, 1881). By his son, T. both ?
his lawful business, as was the deponent also, the “ place of business" of CYPRIAN WILLIAMS, Esq., Barrister-at-Law. H. Sweet.
This really seems to me to be a question of so much consequence to The lamented death of the author of this unrivalled elementary the profession, public in general, and commissioners in particular, that it treatise has thrown the whole work of editing the present edition on his should be, at once and for ever, set at rest; if, indeed, there can be any
We note few changes in the work, except such as are occasioned doubt in the matter. I am not aware that there is any decision upon by the Conveyancing Act, the provisions of which are noticed in the the point, but perhaps you, Sir, or some more vigilant practitioner than proper places. A new chapter has also been added by the editor on myself, may be able to refer me to a casa. the present form of conveyance, setting out in clear and simple language The importance, to my mind, of the question will, I trust, be my sufthe changes proposed to be effected. The additions and alterations, 80 ficient apology for thus troubling you.
G. B. far as we have observed, have been made with accuracy and discretion, Bedford-row, London, July 12. although perhaps a little explanation might have been usefully afforded to the student on some of the more obscure sections of the Conveyancing Act-e.g., sections 10 and 11.
IN RE CLEW.
Sir, I send you the following observations suggested by this case re.
ferred to in your correspondence column last week :
11 & 12 Vict. c. 43, s. 19, gives power to issue a distress warrant where
the special statute provides no means of enforcing payment, and in case DIVORCE SETTLEMENTS.
of its appearing to any justice, “ to whom application shall be made for [To the Editor of the Solicitors' Journal.]
any such warrant of distress,” that there are no goods, &c., he may comSir,- The case of Wigney v. Wigney, reported 30 W. R. 722, suggests mit defendant to prison “ for such time and in such manner as by law considerations which it may be of importance to bear in mind. Accord.
such defendant might be so committed, in case such warrant of distress ing to the report a husband was by a marriage settlement given a life had issued and no goods or chattels could be found, &c.” interest in property of the wife, which interest he afterwards mortgaged.
By section 22 of the same Act, as amended by 21 & 22 Vict. c. 73, A decree for dissolution of the marriage having been made, the registrar,
g. 5, there is power in such cases, where the statute provides no remedy upon inquiry, appears to have reported that the settled property ought to in default of distress, to commit for not exceeding three calendar be held upon the trusts arising on the husband's decease-in other words, months. destroying the life interest and the charges on it.
It may be noted that the proviso in section 19 appears to indicate that There being, however, evidence that the mortgages were created to the discretion as to issuing a distress warrant or not might be exercised secure moneys borrowed for the purposes of the joint establishment, after conviction by "any justice” to whom application for a distress before the divorce, the court confirmed the registrar's order subject to warrant might be made. But the form I. 1 given in the schedule to the the wife's undertaking to pay the mortgages.
Act,* does not appear to support this view. The form indicates that it On appeal a variation, which I need not mention, was directed to be is to be determined at the time of conviction, and to be stated in the made in the order. I only desire to quote the following observation of conviction, whether a distress warrant is to issue or not, and it might the Master of the Rolls :—“The court has allowed the mortgages which have been questionable whether, if a conviction adjudged distress, and he created on his life interest to remain, but beyond that it has destroyed application was afterwards made to a justice to enforce it, he could dishis interest under the settlement.” The dilemma is this : either the pense with the distress. In practice, I believe, it was always decided at court has, or has not, power to destroy mortgages and assigoments for
the time of conviction whether a distress was to issue or not. value by persone interested under marriage settlements.
The next Act to be noticed was “the Small Penalties Act, 1865" If it has the power, is not a danger incurred which is not taken into
which gave power in all cases of penalties not exceeding £5 to imprison, .contemplation by persons purchasing or taking mortgages on such inter. according to the scale thereby provided, without any distress warrant. ests? whilst on the other hand, if the court has not such power, then the
These Acts were in force when the Licensing Act, 1872, was passed, effect of the provisions of the Acts might be obviated by an assignment and section 51 of that Act makes 11 & 12 Vict. c. 43, applicable to the for value before the order for varying the settlement was made.
enforcement of penalties under the Licensing Act, cubject to certain proI suppose we must regard the court as having such a power; and it visions contained in the sub-sections, one of which (sub-section 2) is to will, therefore, be well for persons buying, or lending money on, such the effect that where a distress has been ordered to be made for a penalty interests, to bear in mind a possible danger which may destroy their exceeding £5, and there are no goods, the defendant may be imprisoned investment or security.
according to a scale there given.
To ascertain exactly what this means it is proper to consider what the
effect of the 51st section without this provision would have been. COMMISSIONERS TO ADMINISTER OATHS.
It is not a fact that the sub-section alone gives power to imprison in
default of distress. Under the Small Penalties Act, in the case of penal. [To the Editor of the Solicitors' Journal.]
ties not exceeding £5, the scale there given would have applied, and under Sir, I was appointed a commissioner to administer oaths in all the the provisions above quoted of 11 & 12 Vict. c. 43, in the case of penalties common law courts upwards of fourteen years ago. By my commissions I was assigned “to administer oaths and take and receive affidavits
* The form of commitment given in Oke's Formulist racites the conviction as at my place of business, or residence, or at the place of stating that it had been made to appear that there were no goods, &c.
above £5, the defendant could have been imprisoned in default of distress or on its appearing that there were no goods, &c., for not exceeding three
CASES OF THE WEEK. months. This would have been the state of things if sub-section 2 had not been
WILL-CONSTRUCTION-DEVISE FOR LIFE WITH REMAINDER TO ISSUE inserted, and therefore it appears tolerably clear that the object of those AND THEIR HEIRS-GIFT OVER ON DEATH WITHOUT LEAVING CAILDREN.who framed the sub-section was only to provide a somewhat higher scale In a case of Morgan v. Thomas, before the Court of Appeal on the 7th inst., of imprisonment.
the question arose whether a devise to a tenant for life, followed by a gift In Reg. v. Newcastle Justices (or Re Broun), 42 J. P. 598, it was decided over if he should die without having any ohildren, operated to enlarge his that under section 51, sub-section 2, a warrant of distress must actually life estate into an estate tail. The testator made his will in 1834, and died issue before commitment. At that time the Summary Jurisdiction Act, in the same year. By his will be devised all his real estate to bis son L. 1879, had not been passed, and the only form of conviction provided during his life, and after his decease to his lawful issue and their beirs for where a warrant of distress was to be dispensed with on the ground of
ever, if any; and if he should die without leaving any obildreo, the teste. there being no goods, &c., was the form I. 1 (in schedule to 11 & 12 tor gave the property to his son E, and his heirs for ever. L. died in 1881, Vict. c. 43) above alluded to, and the judges probably thought that by without ever having been married. E. died in 1857, intestate. The plainsuch a conviction a distress could not be said to have been ordered to tiff was E.'s heir-at-law. The defendant, on the death of L., entered into be made."
possession of the property. The plaintiff alleged that under the will he But now by the Summary Jurisdiction Act, 1879, the Small Penalties
became entitled to the property in fee, and he brought the action to recover Act is repealed, a scale of imprisonment is provided (section 5) which will, that he had barred the entail, and that be had devised the property in
the property. The defendant alleged that L. took an estate tail under the overrides that in the Licensing Act, and secti 21, sub.se on 3, in
fee to the defendant. The plaintiff demarred to the statement of defence. terms applies to all cases where a warrant of distress is "authorized to Cave, J., held (L. R. 8 Q. B. D. 578), though not without some doubt, that be issued.” Now it is clear that by 11 & 12 Vict. c. 43, made applicable L. took an estate for life, followed by a remainder in fee to big issue as by section 51 of the Licensing Act, & warrant of distress is "authorized purchasers if he had children, and a remainder in fee to E. if he had no to be issued” for all penalties under the Licensing Act. Therefore the children. The Court of Appeal (JE88EL, M.R., Sir JAMES HANNEN, and above section of the Summary Jurisdiction Act, 1879, applies to such LINDLEY, L.J.) affirmed this decision.-SOLICITORS, 1. H. Wrentmore ; cases, and it appears to override the requirement in section 51, sub-sec- Crowder, Anstie, f Vizard. tion 2, of the Licensing Act as to a distress having been “ordered to be made."
PRINCIPAL AND AGENT-UNDISCLOSED PRINCIPAL PRIVITY OF CONTRACT But, even supposing that requirement to be still in force, the present -RIGHT TO SUE-RIGHT OF PERSON DEALING WITH AGENT TO SET OFF practice as to commitments in default of goods appears to satisfy it. Agent's Debt AGAINST PRINCIPAL.-In a case of Maspons v. Mildred, before The new form of conviction, No. 5, settled under the Act of 1879, the Court of Appeal on the 7th inst., an important question arose as to the applies to all cases where a distress is ordered ; and, whatever may after extent of the right of a merchant in this country, to whom goods are con wards be done, a distress is now always ordered to be made in a properly signed for sale by the agent of an undisclosed foreign principal, to set off, as drawn conviction where the statute provides for distress, and the convic- against the principal, moneys due to him on the general balance of accounts tion no longer states in any case that it appeared that there were no
between himself and the agent, and to retain the balance out of the proceeds goods, &c. That, if done at all, is done afterwards, in the commitment of sale of the principal's goods, or, in case of loss of the goods at sea, ont (form No. 27 of the new forms), which expressly recites, as the fact is, of the proceeds of policies of insurance effected on them by the consignee in
his own name. The plaintiffs were merchants in Havannah ; the defend. that the conviction ordered a distress to be made, thus satisfying the ants were merchants in London. A firm of Demestre & Co. carried on bositerms (if they now require to be satisfied) of section 51, sub-section 2, of ness in Havannah as shipping agents, bankers, and importers, and were the Licensing Act. Then the commitment goes on to state that, a ppli- employed by the plaintiffs to ship goods for them to the defendants, for sale cation having been made for a warrant of distress, it appeared there on the plaintiffs' account. The defendants knew Demestre & Co., and correswere no goods, &c., and imprisonment is therefore ordered.
ponded with them and had extensive dealings with them, but, although the The forms now authorized would really have been more applicable plaintiffs knew who the defendants were, and wished Demestre & Co. to to the apparent meaning of the provisions of 11 & 12 Vict. c. 43, than employ them, the defendants knew nothing of the plaintiffs, and when the the forms in the schedule to that Act; but, whatever difficulty might plaintiffs sent goods through Demestre & Co. to the defendants for sale, the have been felt before the Summary Jurisdiction Act, 1879, was passed, goods were sent in Demestre & Co.'s name, and the defendants accounted to it is very hard to see how it can be now argued that section 21 of that Demestre & Co. for them, and Demestre & Co. accounted to the plaintiffs
. On Act does not apply to cases under the Licensing Act, or how there can be Co., and made them advances, upon the understanding and agreement that
the other hand, the defendants acted as bankers and factors for Demestre & any doubt about the power of justices, in cases of penalties above £5, to Demestre & Co. should remit to the defendants cash, bills, or goods to cover imprison at once on its appearing that there are no goods, &c.
those advances. The defendants kept only one account with Demestre & Co., It will be observed that in cases below £5, now that the Small although they sometimes made advances on specific consignments. In July, Penalties Act is repealed, there is no power of imprisonment at all except 1880, the plaintiffs arranged with Demestre & Co to forward to the defendants for under the Summary Jurisdiction Acts, and therefore it is submitted that sale a cargo of tobacco. Demestre & Co. accordingly chartered a ship in their no one would deny their application to such cases.
own vame, the tobacco was put on board, the bills of lading for it being made A JUSTICES' CLERK. out in their name. In accordance with telegrams sent by Demestre & Co.,
directing them to insure the cargo for $11,000, the defendants effected an insarance for that amount by slips in the usual way, but the policy
was not made out and signed until the 18th of September. Tho policy was effected by the FOREIGN MARRIAGE LAWS.
defendants in their own names, and for the benefit of all persons interested. [To the Editor of the Solicitors' Journal.]
On August 9 the defendants were informed by a letter from Demestre & Co.
that they were acting in the matter as agents for a principal, whom they Sir,-Referring to the article on Foreign Marriage Laws in your issue spoke of as the “interesado,” but whose name they did not mention. A few of the 24th of June, can any of your readers inform ine whether a days before the policy was obtained Demestre & Co. failed. The ship was marriage in England between a British subject and a naturalized foreign lost, and before the underwriters had paid to the defendants the amount ia. subject is binding upon the naturalized foreign subject in his own sured the plaintiff: claimed to be entitled to it, and the defendants knew of country ?
this claim. The defendants received from the underwriters £11,000, and they No mention is made of Germany in the memorandum drawn up by the sought to retain the whole of it, upon the ground that Demestre & Co. were committee of the Social Science Association. Is a marriage in England indebted to them to a larger amount upon the general balance of accounts between a British subject and a German valid in Germany ? JUVENIS.
between them. The plaintiffs, on the other hand, contended that they were entitled to the whole £11,000, atter deducting the premiums piid by the de fendants for effecting the policies, and what, if anything, Demesire & Co, might have deducted or set off as against the plaintiffs, if Demestre & Co. bad
received the policy moneys and remitted them themselves. The action was On the 6th inst., in the House of Commons, Mr. E. Clarke asked the First brought by the plaintiffs to recover the £11,000 from the defendants. At the Lord of the Treasary whether, having regard to the fact that there was now no trial before Manisty, J., the jury found that
the tobacco was the property of prospect of a Bankruptcy Bill' being introduced by the Government during the the plaintiffs ; that the defendants were not employed by the plaintiffs, bat present session, and that a Bill brought in at the instance of the Associated by Demestre & Co.
, to sell the goods and account for the proceeds, but that Chamber of Commerce, which had been read a second time had been blocked the defendants knew or had reason to believe that Demestre & Co. were acting by the President of the Board of Trade, he would use his influence as agents for an undisclosed principal. Also that the defendants were em: with the President of the Board of Trade to induce him to remove the ployed, not by the plaintiffs
, but by Demestre & Co., to receive the amount block, and to permit the Bill to be considered in Committee. Mr. Chamber of the insurance for them, and that they received it on account of Demestre de laid said : “ The Bankruptcy Bill referred to by the hon. member was read the Co. and the individual interested. second time late at night in a thin House, and after a proposal to adjourn the Demestre & Co. to consign the goods in their own name, and that the insure opinion, offer no foundation
for a satisfactory amendment of the law, and "as findings judgment was sntered for the defendants. The Court of Appeal at an hour when there is no time for adequate discussion." In further answer LINDLEY, L.J., who delivered the judgment of the court, said that the questo to Mr. E. Clarke, Mr. Chamberlain said the Government were not prepared tions at issue reduced themselves to two viz. (1), Could the plaintiffs sae the to give facilities for the discussion of the Bill referred to.
defendants at all ? (2) If they could, were the defendants entitled to the