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seems to have been thought necessary for the due qualification of the covenants referred to in the section :—
"10. —(1.) Rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the sobject-matter thereof, •nd on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and ihall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the cue may require, of the land leased."
•There can hardly be any doubt that the phrase "having reference to the subject-matter" of the lease, is much wider in its terms than the old phrase " running with the land." It seems to include every covenant except those which are collateral in the narrowest sense of the word. In this respect the section greatly extends the legal powers of reversioners.
What is the true intent of the provision that "rent reserved by a lease .... shall be ... . incident to ... . the reversionary estate in the land, or in any part thereof, .... and shall be capable of being recovered .... by the person entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased "? This seems to say that a person entitled to the income of half the land may 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, the conclusion is doubtless too absurd to be accepted; but we think it unsatisfactory that the court and the public should be left to such a consideration for their guidance. Or will it be suggested that the bare words "as the case may require" were intended to supply this defect?
Lastly, there is some ambiguity in the use of the word "income." The use of this word is more common in reference to persons who take as equitable owners, through the hands of trustees, than to persons who take by virtue of a legal estate. It cannot have been intended that every beneficiary under a settlement of real estate shall be entitled to exercise the rights and powers given by this section.
Section 10 having dealt with the incidence of the benefit of the Itttee's covenants, the next section deals with the incidence of the obligation of the lessor's covenants.
"11.—(1.) The obligation of a oovenant entered into by a lessor with reference to the (object-matter of the lease shall, if and as far as the lessor has fiwer to bind the reversionary estate immediately expectant on the term >r n'ed by the lease, be annexed and incident to, and shall go with, that renrsionary estate, or tbe several parts thereof notwithstanding severance of t >at reversionary estate, and may be taken advantage of and enfur^ed by tbe person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise; and, if and as far as the lessor has power to Mud Hie person from time to time entitled to that reversionary estate, the obligation • foresaid may be taken advantage of and enforced against any person so mulled."
The meaning of the words "if and as far as the lessor has power to bnd the reversionary estate," is not very clear. They may perhaps refer to the case of a lessor leasing under a power whether statutory or other) enabling him to make a lease for a longer term than he could make at common law by virtue of his estate in the land; though this is a power to create a term which ^hall be good against the reversioner, and is evidently a power to hind the reversioner rather than to bind the reversionary estate. They may also be designed, and are much better adapted, to exclude from the section leases which operate only by estoppel, where the lessor has no lawful estate in the lands.
It is to be noted that the words in the last line of the wction, " any person so entitled," seem plainly to refer to the prefc-ding words, "the person from time to time entitled to that m-ertionary estate " ; which contain no mention of "the several l^aru thereof"; whence it would seem that the latter part of the section does not, like the preceding part, affect to give a remedy to the termor after a severance of the reversion.
The words of the sub-section which enact that the obligation of the lessor's covenants shall go with the "reversionary estate, or the several parts thereof, notwithstanding the severance of that I' versionary estate," may perhaps have inconvenient consequences. It must be observed that such covenants might be such as to apply Melusively to one portion only of" the subject-matter of the lease." Suppose the reversion in this portion to be separated from the
reversion in the rest. It would seem that, under section 11, the termor may " enforce the obligation" of the covenant against the owner or owners of the reversion in the other portion. This liability will probably give rise among the owners of the several portions of the reversion to claims of indemnity and contribution which are not provided for by the Act, and will perhaps not be easy to adjust.
"12.—(1) Notwithstanding the tever^nce by conveyance, anrrender, or otherwise, of the reversionary est its in any land comprised in a letse, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition, contained in the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to whioh tho term has not b?en avoided, or has not otherwise ceased, in like manner as if the lanl comprised in each severed part, or the land as to which the term remains subsisting as the case may be, had alone originally been comprised in the lease."
The words, "notwithstanding the avoidance or cesser in any other manner of the term," are not here used very suitably; because they seem to imply that conveyance, surrender, and other like acts in the law, might operate by way of avoidance or cesser. They were perhaps inserted, like section 14, in reference to the conditional limitation of a term as distinguished from a term limited subject to a condition. The section seems to empower any person entitled in reversion to a part only of the land comprised in a lease to re-enter upon that part, to the same extent and in like manner as he might have re-entered upon the whole land, if there had been no severance of the reversion, and his title to the whole had been the same as his title to the part. The effect of the section is therefore sufficiently beneficial to reversioners. Some doubt may be felt whether it will not be found to go further in this direction, under certain circumstances, than was foreseen. Suppose a building with adjacent lands to be leased, the lessee covenanting to keep the building in repair, with a condition of reentry on breach of the covenant; and that the lessor grants away his reversion in the part of the land whereon stands the building. The condition will then be purely collateral to the part of the land in which he retains the reversion. But it would seem that, upon a breach of the covenant, he might eject the lessee from this 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 objection that the reversion has been severed is obviated by the present section.
The three sections lastly reviewed by us, 10—12, apply only to leases made after the commencement of the Act. The parties are nowhere empowered to exclude their operation, and it is a curious question, whether and how far their operation could be excluded by parties who might desire to exclude them.
We are reminded by section 13 (which we have explained in a former article) that we have more than once adverted to what looks like a haphazard arrangement of topics in the Act. It certainly seems to us not only that section 13 might more conveniently have formed part of section 3, but also that section 11, dealing with the lessee's rights, is very awkwardly obtruded between sections 10 and 12, which deal with the rights of the lessor. We may also point out that the insertion of section 12 has gone so far towards making the inclusion of " conditions" in section 10 superfluous, that we can only explain the co-existence of the two phenomena by supposing section 12 to have been devised as a substitute for the part of section 10 dealing with conditions, and that this part of section 10, like Part I of the first schedule, escaped being struck out by inadvertence. We should be strongly confirmed in this conjecture by the fact that section 14 deals with restrictions upon the rights dealt with in section 12, if the connection were not interrupted by the unlookcd for apparition of section 13.
Section 14 applies (sub-section 9) to leases made either before or after the commencement of the Act, and will have effect notwithstanding any stipulation to the contrary. But (subsection 8) it does not affect the law relating to forfeiture or relief in case of non-payment of rent; nor (sub-section 6) docs it extend to a condition against assigning or under-letting, or of forfeiture on the lessee's bankruptcy, or on the taking in execution of his interest, or to a condition in a mining lease for securing to the lessor access to books, machines, or the mine itself. Even allowing for these exceptions, the scope of the section remains sufficiently wide; especially as (sub-section 7) the existing statutes relating to forfeiture fdr neglect to insure against fire are repealed, and such forfeitures will in future he regulated by the provisions of this section:—
"14.—(1.) A tight of re-entry or forfeitnre under any proviso or etipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable by action or otherwise, unless and until the lessor eervcs on the lessee a notice specifying the particular breach complained of, arjd, if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails, wiihin a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.
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 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 conditions have been fulfilled on his part and certain further defaults have been made on the part of the lessee. The latter can always delay the lessor's operations during "a reasonable time," and may escape the forfeiture altogether, (1) if the breach admits of no remedy, by only paying damages; (2) if the breach admits of remedy» by remedying the breach in addition to paying damages. It may be predicted that in some cases, (where, for example, a mining-lessee's breach of covenant is flooding the tnine,) the necessity of waiting for his remedy would inflict great injury on the lessor; but we presume that " reasonable time would be construed with reference to the exigencies of the case.
"(2.) Where a lessor is proceeding, by action or ttheiwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lissor's action, if any, or in any action brought by himself, apply to the court for relief; and the ccuTt mny grant or refuse relief, as the coart, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in esse of relief may grant it on such terms, if any, aa to costs, expenses, damages, compensation, penalty, or otherwise, including the grant ng of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks tit."
There are only two ways in which a lessor can proceed to enforce his right—viz., action and entry. The words "or otherwise," near the beginning of the sub-section, must therefore mean "by entry.*'
The discretion of the court as to granting relief, unlike the discretion given by the repealed statutes, is fettered by no restrictions. We expressed an opinion, when the subject was first mooted, that this is a mistake; and we think that this uncontrolled freedom will give rise to a startling variety of judicial decisions, without the possibility of any appeal, since the matter is purely one of judicial discretion.
Sub-section (4) provides that the section shall apply where the condition causing the forfeiture was inserted in the lease under any of the statutes which, conferring upon various corporations and persons powers of leasing larger than they could otherwise exercise, provide that the leases so to be granted shall contain conditions of re-entry for non-payment of rent or breach of any of the lessee's covenants.
Sub-section (5) displays much foresight and acumen.
"(fi.J For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant, shall be, and take effect tie, a lease to continue for any longer term for wMob it could subsist, bnt determinable by a proviso for re-entry on such a breach."
The intention of this sub-section is to include in the provision^ of the section a term limited by way of conditional limitation as distinguished from a term limited upon condition. The sub-section did not appear in the Bill as it was originally drafted. In a very important case before the Master of the Rolls in the early part of this year, the distinction between a conditional limitation aiid a limitation upon condition, as bearing upon the destruction of a right of entry by severance of the reversion, arose; and it would doubtless have caused keen discussion if the case had not unfortunately been settled by compromise. We seem here to discern a tely plausible origin for sub-section (5).
Although we are disposed to look with great jealousy upon all attempts to restrict freedom of contract, we think that section 14 was justified by peculiar circumstances. The contracts thereby
restricted are due rather to the practice of conveyancers than t° the wish of the parties; and the section only places on a legal footing the equitable understanding by which fair-dealing landlords are guided in enforcing their rights. It may be doubted whether the exception from the section of a condition of re-entry for breach of a covenant against assigning or underletting will not do harm. Of all the covenants in a lease this is, we believe, the most likely to be used for purposes of oppression. We may add, in conclusion, that the exception from the operation of the section of conditions for forfeiture on the bankruptcy of the lessee, or taking in execution of his interest in the lease, will render it desirable that all provisoes for re-entry shall contain this condition.
COSTS OP ATTENDING SUMMONSES AT JUDGES'
[To the Editor of the Solicitors' Journal.} Sir,—The letter of "A Practising Solicitor" in your last number has induced me to write to you to call attention to what I think is a common error in supposing that a solicitor is only entitled to charge 6s. 8d. for attending a summons at judges' chambers. If your readers will look at the scale of coBts in the schedule to the order as to costs they will find the nllowarices for attendances as follows :—
£ e. d.
On a summons at judge's chambers . . 1 . . .068 Or, according to circumstances, not to exceed . . . .110
But although this is the authorized scale, the masters of the Queen's Bench Division invariably allow 6s. 8d. only for attending a summon;, whatever its importance or the length of time occupied.
Feeling that this practice was wrong and worked injuriously, both to the profession and the public, I on one occasion, in which the circumstances I considered [warranted it, sought to break through the usage and to get one guinea allowed for attending an important summons before the judge. It was attended by the solicitors in person on each side. We had to wait between three or four hours before the summons was called. Several cases were cited, the discussion took nearly half an hour, and the judge in making an order added a certificate for counsel, evidently under the impression that one of us was a member of the bar; yet, notwithstanding all I have stated was strongly urged on him, the taxing master refused to allow more than 6s. 8d. for the attendance. With this, however, I refused to be content, and carried in objections, and, ultimately, after spending a considerable amount of time in supporting them (which might have been much more profitably employed), I succeeded in inducing the master to increase the allowance to 13s. 4d., but I could not by any persuasion get him to make it one guinea; and, as I got nothing for preparing or attending on the objections, your readers will quite understand that my gain was of little value to me in this particular case, but I bad the satisfaction of breaking through a pernicious usage which I believe only works injuriously to all parties interested.
My object in writing this letter is to call attention to the fact that the masters can allow more than the accustomed 6s. 8d. in a proper ce.se, and to urge upon your readers to aid as far as they can in breaking throug h the present practice, and in cases Where they attend an important sum mono in person, to insist on the masters increasing the allowance. In the end, I am sure, clients will be benefited, as it will lead to solicitors themselves attending in person important summonses at judges' chambers, instead of giving a brief to counsel almost as a matter of course, which practice has led to a cry in some quarters against counsel attending chambers at all, an alteration I do not desire to see.
A City Solioitob.
Sir,—The reactionary recommendations of the Legal Procedure Committee are now before the judges, and there seems some danger that they may pass into law. Is it too late to protest against their hasty adoption, and to ask that solicitors, at least, who are best acquainted with the interest Of their clients, may have some voice in the framing of the new procedure?
Two of the threatened changes in particular are worthy of special notice.
1. The proposed abolition of pleadings in common law actions, except by special leave, and,
2. The restrictions placed on discovery.
To abolish pleadings is to fall back on a system happily long ago swept away, under which each party found for the first time when he came into court what was the case he had to meet, and to adopt the rough and ready justice that prevails in our county courts.
Under the modern system of pleading, each party has to state his case, and if the system is fairly worked, and especially if, as in the Probate Division, issues were adjusted between the parties, and the costs of each issue separately dealt with on the trial, no system could, I think, be better. To insist on special leave for pleadings is simply to hamper the administration of justice, and in the long run to make justice more costly.
To abolish discovery, aguiu, 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 questions answered, is a natural corollary to the recommendation to abolish pleadjugs. The parties will thus be left in the dark as to their opponents' case; they will have to bring up witnesses to prove what the other side would, on interrogatories, have been obliged to admit, and to prove facts amply evidenced by documents which the proposed changes will place beyond their reach.
From the Legal Procedure Committee's report it appears that out of about 60.000 cases begun in 1879, over 36,000, or more than 61 per cent, of the total, were practically undefended, and were Bettled in a summary manner. Of the remaining 39 percent., less than 4 per cent, went to trial ; 35 per cent., therefore, of all actions, or over 90 per oent. of those in which there was any substantial litigation, were settled without a trial.
The significance of these figures, upon which the oommittee has based its recommendations, seems to have been strangely misunderstood. Of the defended cases settled without trial, every solioitor familiar with the details of litigation will, I think, admit that a large majority were settled when the parties found through the pleadings, from auswers to interrogatories, and from discovery of documents, that the case on one side or the other was untenable. To abolish the most effective weapon in the bauds of honest litigauts is, indeed, a false economy, and will simply tend to multiply the number of actions that come to trial, and to Increase the cost of evidence at trial.
The true remedy for many of the existing defects of the common law system is, it seems to me, to assimilate the common law to the chancery system in so far as to make the master, like the ohief clerk, only the judge's deputy, bound when required to refer applications to the judge. This change would cheapen law, for no order need be drawn up, and no new summons issued by way of appeal to the judge. Counsel would cease to appear before the master, and a fairer and more patient hearing would be secured than even counsel at present obtain.
Ia any case, before new rules are issued the opinion ought surely to be tnken of men familiar With everyday practice. The Incorporated Lnw Society on Fridny last appointed a committee to consider arid report upon the recommendations of the Legal Procedure Committee. Is the opinion of such a committee not worth the waiting for f If fairly representative of the working members of the profession, and if it succeeds in eliciting the views of those actively engaged in common la* practice, there will, t believe, be found a vast majority to affirm unhesitatingly that the proposed changes, although intended to effect some economy in interlocutory proceedings, would very largely increase both the cost and the uncertainty of litigation. J, S. R.
THE CONVEYANCING ACT.
Sir,—I should wish to call to your notice, if yon will allow me, a case seemingly unprovided for in section 15, sub-section (1). A. mortgages a property to B., and afterwards settles the same property on his son O. for life, with remainders over. A. then dies. O. pays off the mortgage, but withes to keep it alive; and, therefore, proposes to take a transfer to himself. Is be a "third person" under the section? He Is certainly entitled to redeem. II. N. R.
[Bat see the interpretation clause, section 2, sub-section 6, as to the meaning of " mortgagor."—Ed. S. </.]
THE ABOLITION OF THE EXCHEQUER DIVISION. [2V> the Editor oj the Bolicitore' Journal.'] 8ir,—Will any of your learned readers be good enough to assist me In a little point?
In 3 Hie. 2 I held (as appears by the book of Jocular Tenures of that learned man, Blount) of the King certain lands in the More in Salop, by the •erviee of paying to the King yearly at his Exchequer two knives, whereof one ought to be of that goodness that at the first stroke it would cut asunder in the middle a hazel rod of a year's growth and of the length of a cubit. This service I ought to do, and did, in the middle of the Exchequer, In the presence of the Treasurer and Barons* every year on the morrow of S. Michael.
Now, I am much concerned (as any respectable ghost would be) to see that my successor in title renders all proper dues to his Sovereign; bat I am told that you moderns have' abolished the Court of Exchequer, and this being so, hdw is the owner bf the land in the More (formerly mine) to render his ttro knives in the Exchequet t
Perhaps you will tell me what my suooeasor is to do, if her Majesty, happening to require a knife of the astonishing sharpness above mentioned, calls upon hirri to render his service dda? Is he to incur a forfeiture in the event of the render of knives id the accustomed place and manner being insisted on? Walter Db Alsekam.
CASES OF THE WEEK.
Bankruptcy—Protected Transaction—Notice Of Act Of Banksuptcy —Notice Op Presentation Of Bankruptcy Petition—Bankruptcy Act, 1869, ss. 94, 95.—In a case of Ex parte Banks, before the Court of Appeal on the 17th inst., a question arose as to notice of an act of bankruptcy. Tbe trustee of a bankrupt olaimed to reoover from his bankers all htoneya which they had reoeived on his aooount subsequently to the l8ih or Jane, on the ground that they had on that day reoeived notice of an act of Bankruptcy committed by him. Sometime in May a olerk in the employment of the bankers' solicitors was searching the index at the London Bankruptcy Court, with the view of ascertaining whether a petition had been presented against another person named Smith, and in the course of his search he happened to notioe that a petition had been presented against the bankrupt, whom he knew to be a oustomer of the bank. On the 18th of June the clerk happened to be at the bank on other business, and in the course of conversation with the bank manager he told him that, when be wassearohing the index at the Court of Bankruptoy, he had noticed that a petition had been presented against the bankrupt. The manager happened to see the bankrupt a day or two afterwards, and he then asked him about the petition. The bankrupt answered that the petition had been settled. In the following August he was adjudicated a bankrupt upon another petition, founded upon another act of bankrnptoy wbioh had been committed before the aot aliened in the petition of which the manager bad been told. The Court of Appeal (jessel, M.R., and Baqqallat and Lush, L.JJ.) held that the bankers bad bad a Boffioieut notioe of an act of binkruptoy on tbe 18th of June, and that they mnst aooount to the trustee for all moneys of the bankrupt whioh they had reoeived since that date. Jessel, M.R., said that the decision of the Court of Appeal in the reoent case of Lucas v. Dicker (29 W. B. 116, L. K. 6 Q. B. D. 84), showed that notioe of tbe presentation of a bankruptcy petition, by whomsoever given, amounted to notioe that an aot of b»okrnptoy bad been committed by the person against whom the petition was presented. His lordship was not prepared to decide what kind of casual conversation would be notioe to a man of business. But in the present case the notioe was taken by tbe bank manager as a matter of business, and he thought it so important that he interrogated the bankrupt on thesnbjeot. The information was given by the olerk as a notioe and was aooepted by the) bank manager as snob, and that was suffioiant. Baqoallay and Lush, L.JJ., oonourred.—Solicitors, Kearsey, Son, & Hawei; J. J. Hubbard) Son, $ Eve.
Trustee In Bankruptcy—Disclaimer Of Lease Op Bankrupt—Rionr To Kbhotb Fixtures—Bankruptoy Act, 1889, s. 23.—la a oass of Ex parte Qlegg, before the Court of Appjal on the 17th inst., a question arosa as to the effect of a disclaimer by a trustee in binkruptoy of a lease belonging to the bankrupt upon the right of the trustee to remove fixtures attaohed to the demised property. The lease, whioli was for ten years from November 18, 1871, contained a proviso that the lessees, their executors, administrators, and assigns, might at any time or times during the contlnrlanoe of ths Isrm, or within twelve months from the expiration Or otherwise sioner determination thereof, bat not afterwards, remove any buildings or machinery whioh they might have erected on the demised premiss* for trade purposes. On February 17, 1881, the lessees filed a liquidation petition, under whioh, on Mareh 10* a trustee of their property Was appointed. Oa April 9 the trustee sold the fixed machinery whioh the debtors had ereotel ott the laud, ind It was thereupon removed by the purchaser. Oa April 13 the trustee disclaimed ths lines. Tbe lessor then claimed from the trustee the proceeds of Sale of the maohlnery, on the ground that by the disclaimer the trustee had lost the right to remove the fixtures. Baoon, C.J., held (29 VV. R. 893) that, inasmuoh as there was a bargain that the leisees should have the tight to remove the fixtnres svlthin twelve months after the expiration Of tbe lease, the case was distinguishable from Ex parte Stephens (26 W. R. 138. L. R. 7 Ch. D. 127) and Ec parte Brook (27 W. R. 253, L. R. 10 Ch. D. 100), Which depended upon the common law right to remove fixtures after- the end of a lease, arid that, consequently, the right to remove the fixtures remiiued, notwithstanding the surrender which was, by section 28, to be deemed to be the effect of the disclaimer, and couli be exercised bv the trustee as an assign of the lessees. Ths Court of Appeal (jessel, M.R., and Baoqallay and Lusn, L.JJ.) reversed this decision, holding that tbe right to remove the fixtures was gone with the lease. Jessel, M.R., siid that, by section 23 of the Bankruptcy Act, the effect of the disclaimer was that the lease was to be dosme i to have been surrendered from the date of the appointment of the trustee. A surrender of the lenss was a surrender of the whole lease, not merely of the demise of the land, but also of the licence to remove tbe fixtures, and of every profision in the lease, whether beneficial to the lessees or onerous. The whole lease was gone, and it was impotsible to justify an act done under a license which, by construction of law, hid ceased to exist before the doing of the Act. Tiiis point, however, did not appear to have been considered by the Chief Judge at all. Baqoallay, L.J., said that the distinction suggested between the present case and Ex parte Btephens and Ex parte Brook amounted to no distinction at all, because the proviso fell with the ldase. Lush, L J., s»id th»t there was no such thing as a surrender of a part of a lease ; by a Burrender the entire relation of landlord and tenant was dissolved. When, therefore, the disclaimer was executed, the relation of landlord and tenant came to an end as if it had never existed.—Solicitors, Gregory, Rowcliffes, $ Co.; C. AT. Barker.
Proof Ik Bankruptcy—Secured Creditor—Deduction Of Value Of Security.—In a case of Ex parte The West Riding Union Banking Company, before the Court of Appeal on the 18th inst., a question arose as to the right of a secured creditor to prove in the bankruptcy of his debtor for the full amount of his debt without making any deduction in respect of the value of his security. The question arose thus: B. and T. carried on business in partnership as cloth manufacturers, tbey being entitled to the profits in equal shares. They held a lease of their mill", which had been granted to them, their executors, administrators, and assigns. On the 1st of June, 1875, tbey entered into an agreement for the dissolution of the partnership as from the 1st of May, 1875. The agreement recited that the value of the interests of the partners had been ascertained, and that a moiety of the ascertained value (except that of the mills and the fixtures tbereiu) had been paid to B. ; that it had been agreed tbat B. should grant T. a lease of his moiety of the mills and fixtures for the term of seven years from the 1st of May, 1875, and that T. should be entitled to carry on the business on his own acconut as from the 1st of May, 1875, and that he should pay all the debts of the firm, and indemnify B. against them. On the same day B. executed a lease of his moiety of the mills and fixtures to T. for seven years from the 1st of May, 1875. At the date of the dissolution the firm were indebted to their bankers on their banking account. On the dissolution this account was closed, and the debit balance was transferred to a new account, opened in the name of T. alone. On the opening of the new account B. and T. concurred in depositing the original lease of the mills with the bankers, as a security for the balance which might, for the time being, be due to them by T. The deposit was accompanied by a memorandum, signed by B. and T., which provided tbat B. should not be liable to the bankers in any way, except as concurring in the deposit, and tbat he was only a surety for T. In November, 1880, T. filed a liquidation petition, under which a trustee was appointed. At the date of the filing of the petition a balance was dne by T. to the bankers. The bankers claimed to prove in the liquidation for the full amount of their debt, without making any deduction in respect of the value of their security. It was contended on their behalf that, inasmuch as B. would have had a right as against T. to insist on the application of the lease and fixtures in the payment of the debts of the firm, and in the bankruptcy of T. or of the firm the lease and the fixtures would have been administered as partnership assets, the security must be treated as a seourity, not upon the separate estate of B. and upon the separate estate of T., but upon jhe partnership estate, and that, consequently, the bankers were not bound to deduct the value of the security from their proof against T.'s separate estate. The Court of Appeal (jessel, M. R., and Babgallay and Lush, L.J.J.), affirming the decision of Bacon, C.J., held that the value of a moiety of the lease and fixtures must be deduoted from the proof. Jessel, M.B., said that the principle of the bankruptcy law was plain enough—viz., that a creditor could not be allowed to prove against the estate of his bankrupt debtor, and, at the same time, retain a security for the debt, which, if it were given up, would augment that estate. That was the principle, and the only question was whether the security would, if given up, go to augment the estate. If the security was given by a stranger, it would not, if cancelled, go to augment the estate, and, therefore, it need not be given np. And the exception bad been extended to the cases of a creditor of a partnership who held security for his debt on the separate estate of one of the partners, and of a separate creditor of a partner, who held a security on the joint estate. But the exoeption had never been extended any further. In the present case B. and T. each pledged his moiety of 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 had been two separate mortgages of the two moieties; there was in no sense a joint security. Whatever rights the joint creditors might have had against the property, if their debts were unpaid, could not affect the rights of the bankers against the mortgagors. They had not in fact been made bankrupts. There was no foundation at all for the argument. Bagqallay and Lush, L.JJ., concurred.—Solicitors, Jaquea <fc Layton; Fan Sandau <$• Gumming.
Mortaoeh—Equitable Mortgage—Getting In Legal Estate—Rights As Against Prior Equitable Mortoagee—Notice.—In a case of Harpham v. Shacktock, before the Court of Appeal on the 18th inst., a question arose as to the right of an equitable mortgagee of land to avail himself of the legal estate which be had got in, so as to obtain priority overan other equitable mortgagee, whose security was prior in date. There was a legal mortgage of land, and three subsequent equitable mortgages. The fourth mortgagee, when he advanced his money, had no notice of the second and third mortgages. The first mortgagee having been paid off, conveyed the legal estate in the property to the fourth mortgagee, who at that time had notice of the second and third mortgages. It was not, however, shown that the first mortgagee had, when he executed the conveyance, any notice of the second and third mortgages. The Court of Appeal (jessel, M.R., and Bagqallay and Lush, L.JJ.) held that the fourth mortgagee was not entitled to avail himself of the legal estate against the second and third mortgagees, but that the seoond, third, and fourth mortgages must take priority in the order of their dates.
[This deoision appears to break down in some degree the authority of previous decisions as to the protection given to an equitable mortgagee who gets in a legal estate Irom a trustee who has 110 notice of prior equitable mortgages, but it seems to carry out the view expressed by the late Lord Justice James in the case of Fileher v. Rawlins (20 W. B. 281, L. E. 7 Ch. 268), where he ssid, "Those cases where the person seeking the conveyance knew the fact that the
trustee was trustee for somebody else, and could not convey without a breach of trust, whilst the trustee was left in ignorance—those cases, I say, involve a principle which I have never been able to understand."]—Solicitorb, R. Smith $ Wilmer; W. F. Watson; Palerson, Snow, $ Bloxam.
Charge Oh Debt—Notice—Priority—Officer's Commission Money— Regulation Of The Forces Act, 1871 (34 & 35 Vict. C. 86), s. 3.—In a case of Johnstone v. Cox, before the Court of Appeal on the 21st inst., a question arose as to the priority of incumbrancers upon the money payable by the Army Purchase Commissioners to an officer in the Army in respect of his commission upon his retirement from the Army. An officer had given three charges upon the money to which he would be entitled on his retirement, and various notices had been given by the incumbrancers to the Army agents through whom the money would be payable. The officer having sent in his papers, the Army agents, on the 29th of March, received the sum of £800 through the Paymaster-General, for which they gave a receipt to the Commissioners, which stated tbat the money was received on account of the officer. The £800 was entered by the agents in their books in the account of the Commissioners, and opposite to it was written the name of the officer. The officer's retirement was published in the London Gazette on the evening of the lSth of May, 1879. The first incumbrancer gave a fresh notioe of his charge to the Army agents on the 21st of May; the second incumbrancer on the morning of the 17th of May, as soon as the aeentt' office was open; and tbe third incumbrancer at the same time. Tbe fund was insufficient to pay them all in full. Section 3 of the Regulation of the Forces Act, 1871, provides that every officer "shallon his retirement be entitled in respect of such commission to receive on application to the Commissioners, the price or sum hereinafter mentioned." Bacon, V.C., held (29 W. R. 351, L. R. 16 Ch. D. 571) that the money remained the property of the Commissioners until the officer's retirement appeared in the Gazette, and that until that time the officer could not have drawn upon it, and that, consequently, no notioe given by an incumbrancer before the publication of the retirement ia the Gazette was of any avail. His lordship therefore held tbat the second and third incumbrancers, who gave their notices simultaneously as soon as possible after the publication of the Gazette, were entitled to priority over the first incumbrancer, whose notice was not given till several days later, and that as between the second and third incumbrancers, their notices having been given simultaneously, they must rank in priority according to the dates of their charges. Tbe Court of Appeal (jessel, M.R., and Baogallay and Lush, L.JJ.) affirmed this decision.—Solicitors, Dod $ Longstaff; Fladgale, Smith, <k Fladgale ; S. Scott; Eollams, Son, <£• Coward.
Evidence—Witnesses Examined De Bene Esse,—In a case of Llanover v. Homfray, before the Court of Appeal on the 22nd init., a question arose as to the admissibility as evidence in the action of an examination of witnesses de bene esse taken in another suit. The action was brought by the lord of a manor to restrain customary tenants of the manor from working mines under their tenements without the licence of the lord. The tenants alleged that there was a custom in tbe manor that the tenants should work the mines without any licence from the lord, and they brought a cross-action to establish tbe custom. In the year 1815 some of the then tenants of the manor had commenced a similar suit against the then lord to establish the custom, and in that suit some old witnesses were examined de bene esse. The suit, however, was dropped in the year 1819. The Court of Appeal (jessel, M.R., and Bagqallay and Lush, L.JJ.) held that these examinations might be read as evidenoe in the present aotion, there being sufficient privity between the parties to the suit and the action.—Solicitors, Freshfields 4; Williams; T. W~. Denby; Field, Roscoe, $ Co.; Vllithorne, Cunsy, d; Villiers.
Appeal— Security For Costs—Poverty Of Appellant—Ord. 58, B, 15. —In a case of Sarloek v. Ashberry, before the Court of Appeal on the 23rd inst., the question arose whether the mere poverty of an appellant is a sufficient reason for requiring him to give security for the costs of his appeal. The defendant had given notice of appeal from the judgment of Fry, J. (29 W. R. 887, L. R. 18 Ch. D. 229, 25 Solicitors' Journal, 640), and the plaintiffs applied for an order that she should give seourity for the costs of the appeal. Tbey filed an affidavit in support of the motion, in which they deposed that in their belief the defendant was in very poor circumstanoes, and totally unable to pay the plaintiffs' costs of the appeal in case it should be deoided against her. Tbe defendant did not answer this affidavit, but it was urged on her behalf that the court had never yet held that the mere poverty of an appellant was of itself a sufficient ground for requiring him to give security for the costs of his appeal. The court (jessel, ll.lt., and Baogallay and Lush, L.JJ.), however, held that tbeappellant must give security, and fixed the amount at £30. Jessel, M.R., said that tbe praotice had been for some time settled that an appellant who was unable, by reason of his poverty, to pay the respondent's costs of the appeal, if it should prove unsuccessful, must, if the respondent asked for it, give security for the costs. It must be remembered that under tbe old practice of the Court of Chancery every appellant was compelled to deposit £20. Lush, L.J., said that the practice of both the Conrt of Chancery and the courts of common law as to security for costs had been altered by the Judicature Rules, and it was now left to the discretion of the Court of Appeal whether, under special circumstances, security for the costs of an appeal should be required, and it had been held that poverty, or inability to pay the costs of the appeal was a " special circumstance" within the meaning of rule 15 of order 58. The right of appeal was, consequently, to this extent, not an absolute right.—Solicitors, T. R. Barllett; Gregory, Rowcliffes, $ Batele.
Appeal—Extension Of Time—0»d. 58, R. 15—Company—Winding Up—. Rule Of Stannaries Court.—In a case of In rs The Frank Mills Mining Company, before the Court of Appeal on the 23rd inst., an application was made to extend the time for bringing an appeal. One of the grounds alleged was that the applicants had not had an opportunity of appealing to the Vice. Warden of the Stannaries Court from the order made by the registrar. By the rules of that court eight days are allowed for bringing such an appeal, and the Vioe-Warden had confirmed the registrar's order by signing it the day after it was made. The Court of Appeal (jessel, M.R., and Uaggallat and Lush, L.JJ.) said, that though it would be better that the Vice-Warden should not sign an order of the registrar until after the expiration of the eight days, his signing it within the time could not deprive a party of the right of appeal given to him by the rales. Another objection was that the rules of the Stannaries Court require that notice of an appeal to the Court of Appeal should be served on the registrar of the court at the time when the appeal notice is given, and that the applicant) had been unable to serve notice on the registrar in proper time, because bis office was closed and he was absent on his vacation as fixed by statute. The applicants had not given any notice to their opponent within the proper time. The court said that the requirement that notice should be given to the registrar was only directory, and no penalty was attached to ihe not giving of the notice. The object of the notice was that the registrar should send the neces<ary papers to the Court of Appeal. Tbe Court of Appeal would not refuse to hear an appeal because the notice to the registrar had been omit'eJ, and the rules of the Stannaries Court could not alter the Judicature Rules as to appeals. The application was refused.— Solicitors, Gregory, Sotocliffes, 4- Co.; Coode, Kingdon, Cotton.
Solicitor—Costs—Taxation—Lien On Clients' Papers.—In a case of In re Chatter ton, before the Court of Appeal on tbe 23rd inst., a question arose as to the lien of a solicitor for costs upon his clients' papers. On the application of several persona, the common order was made to tax the costs due from tbem to their solicitor, and for delivery up to them by the solicitor of tbe papers belonging to tbem on payment of what should be found due to bi/n. An order was subsequently made for delivery np of the papers on security being given for the costs, and it was then objected by the solicitor that he had a lien on the papers for costs dne to him by each of the c'ients separately. The court (jessel, M.R., and Baqoallay and Ldsh, L.JJ.) held that the objection was untenable. Jessel, M.E., said that the objection was one that onght to have been raised to the original order. If the solicitor wished to assert a lien in respect of separate costs dne to him by his clients, he ought to have applied^to have the order altered. But, as he had chosen to go in nnder it, he could not now raise the objection, but must deliver up the papers on security being given for the costs jointly due to him by the clients.—Solicitor, //'. Howland Jackson.
Specific Performance—Agreement To Grant Lease—Uncertainty— Time For Commencement Of Lease Not Stated—Statotb Of Frauds.— In a case of Marshall v. Btrridge, on the 19th inst., tbe Court of Appeal (jessel, M.R., and Baqoallay and Lush, L.JJ.) overruled the decision of Fry, J, in the reoent oase of Jaques v. Millar (25 W. R. 846, L. R. 6 Ch. D. 153). In that case specific performance was enforced of an agreement to grant a lease which did not fix any time for the commencement of the term, Fry, J., holding that, in such a case, the term was to commence from the date of the agreement. In so deciding he relied upon the case of Dot v. Benjamin (9 A. k E. 614), and thought that the case of Blore v. Sutton (3 Mer. 237) was distinguishable, on the gronnd that it did not appear from tbe report that the memorandum of agreement bore the date of the day upon which it was actually signed. The Court of Appeal, however, pointed out that Doe v. Benjamin was decided before the passing of the Act, 8 4 9 Vict. 0. 106, and when, therefore, an agreement to demise could operate at law as an immediate demise. And the court sent for the record of Blare v. Sutton, from whioh it appeared that the agreement in that case did, in fact, bear the date of the day on which it was signed. Tbe court accordingly, reversing the deoision of Fry, J., in Marshall v. Btrridge, refused to grant specific performance of an agreement to grant a lease, on the ground (inter alia) that the agreement did not state any time for the commencement of tbe term.—Solicitors, Suiters, Gtcatkin, \ Co.; Haeon 4; Turner.
Deed—Construction—Parcels—General Words.—In a case of Willis v. Watney, before Fry, J., on the 21st inst, a question arose as to the proper construction of general words in a deed. The owner in fee simple of a house, who waa also tbe owner in fee simple of a moiety of an adjoining stable-yard, conveyed the house to the plaintiff by a description, which did not include the moiety of tbe yard. But the deed contained the following general words :— "Together with all buildings, ereotions, fixtures, commons, yards, trees, hedges, ditches, fences, walls, ways, waters, watercourses, liberties, privileges, easement', advantages, and appurtenants whatsoever" to the house appertaining, Sec. It was contended that tbe moiety of the yard did not pass under tbe deed, and that under the general word "yards," nothng but an easement eould pass. It was said to be tbe opinion of conveyancers that general words are only applicable to easements. Fry, J., was of opinion that general words, Hke all other words, must be construed according to their meaning. And in this case the deed contained eighteen general words, one of them being the word " easements." If general words could pass only easements, then tbe other seventeen words would be inoperative. Moreover, the grantor had the fee simple of the moiety of the yard, and could not have an easement over his own propeity. He might, no doubt, have created an easement over it, but he did not profess to do that. He could not by the deed pass that which he had not himself.—Solicitors, Shum, Crossman, 4; Co.; C. P. Leant.
Trade-mark—Action To Restrain Infringement—Circulars To CusTomers Of Infrinobk—Interlocutory Motion—Slander Of Title.—In
a case of Anderson v. Liebig's Extract of Meat Company (Limited), before Chitty, J., on the 18th inst., a motion was made to restrain the defendant company from issuing and circulating among the customers of the plaintiff or the public any letters, circulars, or commuuications stating that the use by the plaintiff, or any person selling his goods, of the words "Baron Liebig" and a photograph of the late Baron Liebig on the pots of the extract of meat sold by the plaintiff or any customer was unauthorized, and from threatening proceedings against persons selling Liebig's extract of meat as supplied by the plaintiff unless suoh persons undertook to discontinue the user of the said words and photograph. The plaintiff commenced manufacturing and selling extract of meat in August last, and he used the words "Bsron Liebig's Extract of Meat" on bis capsules, and also a wrapper round the pots with a photograph on it of the late Baron Liebig. The defendants have manufactured and sold the original Liebig's extraot of meat as made by Baron Liebig for the last twenty years. Un the 4th of October last, the defendants' solicitors wrote a letter to the plaintiff stating they had been consulted by the representatives of the late Baron Liebig and the company with reference to the use of the words " Baron Liebig's Extraot of Meat," and the photograph on the extract of meat sold by the plaintiff, and they stated that such user was unauthorized by their clients, and was calculated to mislead the public into the belief that they were purchasing the defendants' extract, and that unless the plaintiff would undertake to discontinue the user proceedings would be commenced. On the 6th of October the plaintiff replied, and declined to give any undertaking. Some further correspondence ensued, and on the 31st of October the defendants commenced an action to restrain the plaintiff from iufringing their trade-mark and labels, and from any piracy of their goods. Since the action the plaintiff had discontinued tbe user of the words " Baron Liebig," and had also changed the photograph ; he, however, asserted a right to use such words, and sell the residue of his stock now on band. It appeared that the solicitors of the defendant company had sent various letters to customers of the plaintiff stating that the user of the above words and photograph was an infringement of their rights snd threatening proceedings unless such user was discontinued. In several cases the defendants had followed up their notioes by commencing actions against tbe plaintiff's customers. The defendants had also given notice to the persons selling the plaintiff his capsules, and the plaintiff was obliged to obtain his capsules from France. It was also alleged that in consequence of notice from the defendants the Custom House officials had declined to allow the plaintiff's capsules to pass. The plaintiff, on November 4, commenced this action to restrain the defendants from giving any further notices, and for damages. He now moved for an interim injunction. The plaintiff alleged that before the trial of the defendants'aotion his trade was being ruined by them, and that the object of the notices was not bona fide, but rather to crush the plaintiff. It was also contended that tbe defendants should have moved for an injunction in their action. Chitty, J., said there were two points to be considered : whether the notices given by the defendants had been boni fide and true in fact, and if untrue in fact, whether the court would interfere. On the first point be was of opinion that the notices were perfectly bona fide, and that there was no malice on thi defendants' part. The strongest evidence of their bona fides was that they had followed up their notices by an action against the plaintiff, and also against several of his customer?. Moreover, as far as he could see, these actions were being diligently prosecuted. He did not think any statement made by the defendants in their notices had been untrue, and there was no ground for the motion. The fact that the defendant company had not chosen to move for an interlocutory injunction was not a sufficient ground for the present motion. On the whole the motion must be dismissed, and the costs would be costs iu the action.—Solicitors, Flux $ Co.; W. A. Crump <£- Co.
Practice—Dismissal Of Action Against Defendant—Motion By Buch Dependant—Right To Substantive Relief.—In a case of Huntley v. link, also before Chitty, J., on the 18th inst., a motion was made by a defendant that a co-defendant should be ordered to deliver over to him certain securities the subject of tbe action. The moving defendant had been dismissed from the action on the 8th of July, 1881. Chitty, J., was of opinion that when an 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 tbe defendant a right to oome to the court to enforce the terms of the order itself, such as where there was an inquiry as to damages given br the order, or where, for instance, a fund in court was ordered to be paid to him. The motion must be dismissed, with costs.—Solicitors, Kay £- Co.; Green is Cheese.
Racehorse—Question As To Ownership—Receiver—Form Of OrderPractice.—In a oase of Boynton v. Green, also before Chitty, J., on the 18th inst., a motion was made by the plaintiff to restrain the defendant from running a racehorse in the latter's name or for the appointment of the plaintiff as receiver of the horse. The defendant was a trainer of racehorses, and he alleged that when the horse was sent to him to be trained the arrangement was that he was to be entitled absolutely to half the property in tbe horse. The plaintiff, on the other hand, alleged that the defendant was only to be entitled to half the profits of racing the horse. The horse bad run in the defendant's name, but the plaintiff objecting to allow the same for the future now brought this motion. Chitty, J., was of opinion that there was a question to be tried as to the ownership of the horse, and therefore he appointed the plaintiff receiver and manager of the horse nntil the trial, without salary, and directed that a sum of £100 in conrt should be treated as security for hia receivership. 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 would be in the form given in Seton, p. 411.—Solicitors, Collyer-Brislow, Withers, Jc Russell; Ullithorne, Currey, cb ViUiers.