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ing. Registration was refused, on the ground that the resolutions the debtor, and not upon the amount of assets for distribution ; were passed manifestly in the interests of the debtor and could not but it is of some importance upon the point we are discussing bind a dissenting minority of the creditors, and the Court of Appeal from the fact that the creditors also passed a resolution granting affirmed that decision. The concluding portion of the judgment the debtor an immediate discharge, which resolution was, howof Mellish, L.J., lays down the general principles upon which the ever, struck out on registration. Ex parte Terrell, Re Terrell court should proceed in such cases as follows:-“ Under these (25 W. R. 153, L. R. 4 Ch. D. 293), is the next case on the point. circumstances the creditors come to resolutions, not merely that There the liabilities amounted to £11,358, and the assets to £75, there shall be a liquidation by arrangement, but that the debtor with preferential claims amounting to £127, and the creditors shall receive his order of discharge at once, on his executing a accepted a composition of one shilling in the pound, payable deed by which he is to be allowed to receive £600 a year from within one month from registration without security, and the any source of income that he may have, and covenants only that Court of Appeal confirmed the decisions of two registrars of the all beyond £600 a year he will pay over to his creditors. Prac- London Bankruptcy Court refusing to register the resolutions, on tically the first effect of that is, he clears his half-pay from paying the ground that there were no assets and no security for the comanything towards his creditors, and he is to keep enough for him position, but they allowed a fresh meeting to be called to give the to live upon without the slightest security that the creditors will creditors an opportunity of passing binding resolutions. Shortly ever get anything. I do not say that there is anything wrong, after the last-cited case the Chief Judge, in Ex parte Williams, morally speaking, in the creditors coming to that resolution. I Re Williams (25 W. R. 432), ordered registration of resolutions think that, being likely to get little, under any circumstances, the accepting a composition of sixpence in the pound, payable by two creditors may have been desirous to discharge him. But it seems instalments unsecured, where the liabilities amounted to £1,366 to me that it is impossible to suppose that the majority of the credi- and the assets to £50; but this case, as well as Ex parte tors would come to such a resolution as that bonâ fide for what Elworthy, must now be considered as expressly overruled by the they considered the best for the creditors. It appears to me mani | last case of Ex parte Ball before the Court of Appeal. The fest that the majority of the creditors have been actuated by case of Ex parte Aaronson, Re Aaronson (26 W. R. 470, L. R. kindly motives towards Sir William Russell, and I think a resolu- 7 Ch. D. 713), is the next upon the point. In that case the tion of that kind cannot stand against the objection of the dis- liabilities amounted to £1,146 98. 6d." (including preferential sentient creditors. The Act of Parliament enables a certain claims, £47 3s. 6d.), and the assets to £187, including £150 the majority of creditors to bind the minority, but it must be a | value of furniture which had been seized under a bill of sale, the majority who are, bona fide, voting for what they consider to be validity of which, however, was questioned by the debtor. The for the benefit of the creditors and with a view of making the best creditors resolved upon liquidation, but did not grant the debtor arrangements for the creditors, and if it is made plain that the any discharge. Registration was opposed by a dissentient resolutions come to are not bona fide for the benefit of the credi creditor and refused by Mr. Registrar Hazlitt, whose decision was tors, but with the intent to discharge the debtor without any real affirmed by the Court of Appeal. In another similar case of benefit to the creditors, then, in my opinion, the minority of the | Ex parte Martin, heard the same day (22 SOLICITORS' JOURNAL, creditors are entitled to object to the registration of such resolu 371), the Court of Appeal affirmed the refusal of the registrar tions."
to register liquidation resolutions, although no creditor opo A few months after the decision in Ex parte Russell the question of the acceptance of a trivial composition came before the "Up to this time the cases show that the Chief Judge favoured Chief Judge in the case of Ex parte Elworthy, Re Elworthy (23 compositions, however small the amount, but was opposed to liquiW. R. 790, L. R. 20 Eq. 742). In that case the debtor's state dations where only nominal assets were shown, whilst the Court ment of affairs showed liabilities amounting to £130, and assets of Appeal were equally averse to small compositions and liquida£7 only, and at the first meeting four creditors, whose debts tions with small assets. The next three cases, however, before amounted in the aggregate to £72, attended, and unanimously the Court of Appeal would appear to have modified somewhat the accepted a composition of threepence in the pound, which was very strong views theretofore taken by the court with regard to 'unanimously confirmed at the second meeting by the votes of the liquidations, and, consequently, we find the court allowing exsame creditors. On the same being presented for registration, the ceptions to the very stringent rules previously laid down by it. registrar and judge of the Greenwich County Court successively | The first case is that of Ex parte Hope, Re Hope (27 W. R. 7, refused to register, but on appeal to the Chief Judge he held that, L. R. 9 Ch.D. 398), where the liabilities amounted to £43,897, inasmuch as all the requirements of the Act and Rules had been and the assets to £120, in addition to claims which were being complied with, the resolutions must be registered. This decision prosecuted by the debtor in two suits in chancery. The creditors has, however, been disapproved of, as we shall hereafter see. | resolved upon liquidation, and granted the debtor his discharge The next case upon the point is Ex parte Staff, Re Staff (23 upon the trustee certifying his consent thereto in writing. The W. R. 950, L. R. 20 Eq. 775), also before the Chief Judge. In registrar and judge of a county court successively ordered regis. that case the debtor's liabilities amounted to £540, and his assets tration, but the Chief Judge reversed that order, and made an to £32. At the first meeting the creditors resolved upon liquida order of adjudication. The Court of Appeal held that there was tion by arrangement, and granted the debtor an immediate dis. no mala fides in the action of the creditors, and restored the order charge. Although this case came before the Chief Judge within of the county court, ordering registration, with the exception of a month after that of Ex parte Elworthy, he stigmatized it as the resolution for discharge, which was struck out as ultrà vires. “a somewhat audacious case," and confirmed the order of the Again, in Ex parte Early, Re Golding (28 W. R. 310, L. R. 13 court below, refusing registration, and dismissed the debtor's Ch. D. 300), the Court of Appeal ordered registration of resolu appeal with costs. He based this decision upon the fact that the tions for liquidation, and granting the debtor an immediate, machinery of the court ought not to be employed in a case where charge, under the following circumstances :--The debtor's liau £32 was all the property which a debtor had to hand over to ties amounted to £534, and his assets to £85, reduced by sheriff satisfy creditors for £540. In the case of Ex parte Page, Re expenses to £54. There were only five creditors, of whom one, who Page (24 W. R. 502, L. R. 2 Ch. D. 323), the question of the appellant, had issued execution for £95 after the filing of the acceptance of a small composition came before the Court of petition, and an order restraining him had been granted. All Appeal. In that case the liabilities amounted to £1,257, and the first meeting of the creditors a composition of one shilling in assets to £371, and the statutory majority of the creditors pound had been accepted, but this was not confirmed at the second accepted a composition of one shilling in the pound, payable in meeting, and the resolutions before mentioned were passed. 19 twelve months, which was opposed by one creditor. The Court registration was opposed by the execution creditor. In delivery of Appeal held that such a resolution was not passed bonâ fide judgment, James, L.J., said, “No doubt the assets are very in the interest of creditors. The decision in Ex parte Walter, and probably they will produce nothing for anyone. but
© But the Re Webb (L. R. 2 Ch. D. 326), also before the Court of Appeal, real contest has been whether one creditor shall take the w which is the next in order of date, and in which resolutions for the assets, or whether they shall be distributed among all liquidation were passed, proceeded upon the construction of rule creditors. The debtor may well have honestly thought tha 301, and the sufficiency of the statement of affairs presented by assets should be distributed equally, and the other credito
of the property whnic the case 03, th
I take the whole of
have honestly thought that they should have a share. It is im- expectation of the debtor acquiring property before the close of the possible to say that the proceedings show on their face that there liquidation which would come into the estate? To compel a has been any abuse of the procedure of the court, or any fraudu- debtor's affairs to go into bankruptcy does not really punish the lent use of the powers of the majority of the creditors." The debtor. If he can obtain votes of creditors sufficient to pass a other case to which we refer, in which the Court of Appeal modi- special resolution, he can obtain his discharge in bankruptcy under fied the rules previously laid down in the decisions we have quoted, section 48 of the Act just as easily as in liquidation : Ex parte is Ex parte Matthewes, Re Sharpe (L. R. 16 Ch. D. 655). In that Hamilton, Re Hamilton (26 W. Ř. 697). And, as was pointed case the debtor's statement showed liabilities £1,759, and assets out in our article upon the discharge of a debtor in liquidation (ante, £85, subject to a deduction of £41 8s. for preferential claims. p. 507), his position, if his creditors are hostile, is really better in The creditors resolved upon liquidation, granted the debtor an bankruptcy than in liquidation. immediate discharge, and voted the trustee £10 for remuneration. Again, how can all the anxiety expressed by the court to Registration was opposed by a creditor for £182, who had com- prevent abuse be reconciled with the decisions in Ex parte Early menced an action and had been restrained, but who could at once and Ex parte Matthewes ? That anxiety seems in those cases to sign judgment ard issue execution if the injunction had been have vanished in the greater anxiety felt by the court to prevent dissolved. Both the Chief Judge and the Court of Appeal con- a particular creditor from reaping the reward of his diligence, firmed the registration of the resolutions, following Ex parte Early. though his doing so would not be in any way at the expense of the Cotton, L.J., came to this conclusion, “ though with reluctance"; other creditors, for in any event they would not get anything out but Lush, L.J., stated that he would have come to the same con of the estate. What is there, then, to prevent a debtor who is clusion independently of Ex parte Early.
possessed of only a small amount of assets from delaying the filing In the last two cases before the Court of Appeal which we of his petition until one or more of his creditors is, or are, in a propose to quote, the question of a small composition was dealt position to sign judgment and issue execution, and then to insti. with, and the court confirmed its previous decisions in Ex parte tute his proceedings so as to come within the rule laid down in Page and Ex parte Terrell refusing to register. The first case was those cases ? In fact, a premium is directly held out by those Ex parte Williams, Re Williams (50 L. J. Ch. 741), in which the cases for a debtor so situated to act as we have suggested. And debtor's liabilities amounted to £1,167 8s. 7d., with assets nil. in that event, what becomes of all this indignation about the abuse At the first meeting twenty-one creditors, whose debts amounted of the machinery of the court? If the present Act remain law in the aggregate to £811 1s. 11d., attended, and sixteen, amounting for much longer, this point may come more prominently before the to £706 78. 11d., voted for a composition of twopence in the pound court, and, probably, if it should do so, we may have some better to be paid within three months after registration. At the second rule laid down than it is possible to extract from the (as it seems meeting ten creditors, amounting to £357 15s. 10d., attended, and to us) utterly conflicting cases of Ex parte Russell and Ex parte eight, amounting to £285 15s. 10d., confirmed the previous resolu- Aaronson on the one hand, and Ex parte Early and Ex parte tion. No creditor appeared to oppose on the application to register, Matthewes on the other. We can fully understand the earlier but, notwithstanding this, the Court of Appeal laid it down that decision of Ex parte Russell, for in that case the creditors, in it is the duty of the registrar to inquire into the bona fides of addition to resolving on a liquidation, passed other resolutions which resolutions even though the registration be not opposed before were clearly for the benefit of the debtor, by giving him property him. The last case of all is the one we mentioned at the commence which ought properly to be divided amongst his creditors. But ment of this article-viz., Ex parte Ball. There the debtor'sliabilities even in that case it would have been sufficient to have struck those were £1,293 and assets nil, but on examination he admitted that resolutions out as clearly ultrà vires, and to have registered the he was in receipt of a salary of £5 per week. The statutory resolutions for liquidation. majority of creditors resolved to accept a composition of sixpence Then, with regard to compositions, we would inquire what in the pound, payable within one month from registration, and to minimum limit of composition does the Court of Appeal intend be secured to the satisfaction of the chairman of the meeting. to fix ? Sixpence in the pound, even though secured, and where These resolutions were duly confirmed and registered. Some the assets are nil, will not be sanctioned by the court; that is dissentient creditors then applied to the court to rescind the clear. But would a shilling in the pound have been approved in registration, but their application was refused by Mr. Registrar. the case of Ex parte Ball ? It is hard to say whether it would Hazlitt, sitting as Chief Judge, he basing his decision upon that of or not, but we should gather from the decision in Ex parte the Chief Judge in Ex parte Elworthy. On appeal, however, the Terrell, and the fact that leave was given in that case to call a resolutions were ordered to be vacated, the Court of Appeal fresh meeting of creditors, that a shilling in the pound would expressly disapproving of the decision in Ex parte Elworthy, have been registered if proper security had been provided. Now, which they held to be at variance with the decision of the same what is there in the Act to fix an arbitrary limit of a shilling in judge in Ex parte Staff. Jessel, M.R., described the proceedings the pound, or any other amount? We are not aware of anyas an abuse of the procedure of the court, and Lindley, L.J., said thing. We fully admit the evil of these nominal compositions, that they were a scandal.
and therefore cordially approve the proposal contained in the Having thus collated all the reported authorities upon the sub | Government Bill of last year to provide a minimum limit of five ject, let us consider what is their practical effect, first, with regard shillings in the pound, but there being no such provision in the to liquidations, and, secondly, with regard to compositions. fresent Act, we think that it is straining that Act for the court to Whilst sympathizing heartily with the desire of the court to pre- fix a limit. We are acquainted with one county court, at least, vent mere “whitewashing" by means of these proceedings, it yet which has frequently registered resolutions for liquidation where appears to us that the court, in laying down the rule it has laid the assets have not been more than from £30 to £50, on the perdown in liquidation, has somewhat strained both the words and sonal undertaking of the solicitor, given in court, that a dividend the spirit of the Act of Parliament. For, after all, what is liqui- of not less than sixpence in the pound would be paid. Whatever dation but another kind of bankruptcy with a slightly different justification there may have heretofore been for taking this form of procedure ? And what is there in the Act of Parliament course, it is clear, since the decision in Ex parte Ball, that the from beginning to end to prevent the statutory majority of Court of Appeal would not affirm the registration in such cases creditors from adopting that form in preference to the regular in the future. But is there any reason why it should withhold procedure of an ordinary bankruptcy ? A debtor is subject to the registration if the undertaking were extended to a shilling in the same penalties in liquidation if he has committed any act made pound? The idea of obtaining such a personal undertaking criminal by the Debtors Act, 1869, and he can at any time be from the solicitor would no doubt be a novelty to the Court of summoned for examination in court under section 96. The great dis- | Appeal, and it might refuse to be influenced by any such undertinction attempted to be drawn between the two is more a fancy taking, possibly on the ground that it could not be enforced in any of the court tban a reality. The Act of Parliament places no way in case the dividend guaranteed were not reached. But that limit either on the amount of composition which it is competent is a point which has yet to be decided, and in the meantime it for the creditors to accept, or upon the amount of assets which appears to us that the amount of dividend has only to be raised shall exist in liquidation. And why should not the creditors to a shilling in the pound to meet the last case of E. parte resolve on liquidation without giving the debtor a discharge, in the Ball.
together the cases and discussed the difficulties arising upon the language REVIEWS.
of the different provisions. Since his first edition was published a remarkable crux has arisen, owing to the repeal of the settled Estates
Act, 1855, and its re-enactment with variations. Section 8 of the CONVEYANCING.
Partition Act, 1868, provides that sections 23 to 25, inclusive, of the HAYES' CONCISE CONVEYANCER, WITH PRECEDENTS ADAPTED TO THE NEW Settled Estates Act, 1856, “shall extend and apply to money to be
CONVEYANCING Act. FOURTH EDITION. By W. B. COLTMAN, Esq., received on any sale effected under the authority of this Act." Which Barrister-at-Law. H. Sweet.
set of enactments is to be considered as incorporated in the Partition Aut,
sections 23-25 of the Settled Estates Act, 1856, or those sections as [Second Notice.]
altered and re-enacted by the Settled Estates Act, 1877 ? Mr. Walker, we We come now to the consideration of the precedents in this edition of
think correctly, comes to the conclusion that the repeal of the old Act Hayes, and we will commence with the conditions of vale. The first thing to by name cannot operate to repeal for the purposes of the Partition Act be observed is that in these Mr. Coltman still makes the vendor agree to
the sections which by virtue of the 8th section are to be read into it. deliver an abstract within a specified time. No doubt the precedent books almost invariably contain such a condition, but we believe that in practice (except in the case of sales by the court this condition is now frequently omitted, and we do not see why the vendor should incur an obligation to deliver the abstract within a specified time. All that seems to be
CORRESPONDENCE. necessary is to require the purchaser to send in his objections and requisitions within a specified time after the delivery of his abstract.
COMMISSIONERS TO ADMINISTER OATHS. We observe also that Mr. Coltman inserts, in the form of general conditions for freeholds or copyholds in one lot, a provision relating to
[To the Editor of the Solicitors' Journal.] retention by the vendor of muniments of title relating to the property sold and also to other property retained by the vendor. Does he con
Sir,– Referring to the letter signed “G. B.” which appeared in your sider the provision of the Vendor and Purchaser Act, 1874, inadequate;
issue of the 15th inst., on the subject of commissions to administer oaths, or is it the object of the insertion of an express provision on this subject to
I am directed to send you the enclosed copy of an opinion on two introduce the stipulation, with which the condition ends, that the vendor
| questions submitted to counsel on the point referred to. will give at the purchaser's expense “the usual acknowledgment of
E. W. WILLIAMSON, Secretary. the purchaser's right to the production thereof,” 80 excluding the
The Incorporated Law Society, Chancery-lane, W.C., July 18. giving of an undertaking for safe custody? We do not see why the
Counsel was requested to advisevendor (not being a fiduciary owner) should not give this undertaking ; and we observe that in the form of conditions for sale of freeholds in
1. Whether a commissioner to administer oaths appointed before the lots the vendor is made to agree to give both an acknowledgment and an
Judicature Act, and whose commission limited him to a particular area, undertaking as to deeds retained by him. The condition as to incum.
is still confined to such area. brances is full and satisfactory, providing (as the forms in the books
1 2. Whether commissioners generally are empowered to take declaraseldom do) for " the claims of tenants to compensation for acts of hug. tions in matters not pending in court with or without any limit of bandry or otherwise," and for “liabilities to maintain fences and other
locality. liabilities of the like description." In the form of conditions for lease
OPINION. holds in one lot we observe an excellent condition, which, besides pro. I think it is clear that all new commissioners for taking oaths of viding for the production of the lease and fire policies and counterparts
affidavits in the Supreme Court, appointed by the Lord Chancellor under of underleases, or copies, and providing that the purchaser shall be section 84 of the Judicature Act, 1873, by commissions in the general deemed to purchase with full notice of everything contained therein,
form now in use, have power to take oaths or affidavits in all parts of goes on to say that the purchaser shall be deemed to buy " with full
England in causes or matters pending in the Supreme Court. They have notice of the past and present state of the property as regards repairs
also, in my opinion, power to take in all places declarations of all kinds and insurance; and such notice shall not be abridged or affected by any
(and not merely in causes or matters in the Supreme Court) under 5 & 6 partial or inaccurate statement in the particulars." Some well-drawn Will. 4, c. 62. The word "now," as used in section 18 of that Act special conditions of sale will be found at the end of the general con. (" officer now by law authorized ”), must be construed to refer to the ditions. With regard to the general conditions we have said enough to
kinds of officers then authorized, which included common law commis, show that they are usually careful and often original. We are not sure,
sioners in towu and country, and chancery commissioners in London. however, that the editor has been quite wise in varying the familiar
These old commissioners could, within their limits of locality, take language of the ordinary introductory conditions.
declarations whether in causes or otherwise. The new commissioners Some simple forms of wills have been added, mostly adapted from inherit the powers of all such old commissioners without the old limits of Hayes and Jarman. They appear to be full and accurate, but might place, and I think that they have the same power to take declarations, probably have been shortened in places with advantage. There is nothing
and either in causes or otherwise, but without limit of place. They have the average testator, and especially the commercial testator, seems to l also for the same reason power under 32 & 33 Vict. c. 38. to take bails valve so much as a terse will, and any eminent editor of a book of
and recognizances. precedents who would give a series of forms of wills prepared on the
With regard to commissioners appointed before the Judicature Act plan of cutting out every uvnecessary word would confer a considerable
there is more difficulty, but I am of opinion that section 82 of the benefit on the profession.
Judicature Act is not limited by anything in section 77, and that the The collection of precedents of mortgages is full and varied. Mr.
operation of section 82 would probably be held to be perfectly general, Coltman gives first the old forms, with the omission of covenants for title, like that of section 84, and such as in effect to strike out of the old com. following these with the forms in the schedules to the Conveyancing Act. missions all limitations of place, just as it certainly strikes out all limitaHe justly remarks that the number of cases in which these latter forms
| tions of court (other than the Bankruptcy Court), and this, not only in can be used is somewhat limited, for the provisions as to statutory mort
relation to causes and matters in the Supreme Court, but also in relation gages do not apply to copyholds or to personal property except chattels to declarations under 5 & 6 Will. 4, c. 62, because (on the same reasoning real. In all the precedents Mr. Coltman inserts the clause we quoted as in the former answer) the power to take declarations, whether in last week providing that the mortgagor shall not exercise the statutory causes or otherwise, is attached to the power to administer oaths. powers without the consent of the mortgagee.
Similarly the old common law commissioners, in my opinion, continue to The forms of leases present little subject for observation. The number
have power to take bails and recognizances under 32 & 33 Vict. c. 38, and of the forms is somewhat limited, and we think might have been increased
the old chancery commissioners have acquired the same power by being with advantage. In particular a precedent of an underlease should have
invested with the authority of common law commissioners. been added. Without going further with our examination of these pre
I am inclined to think that even before the Judicature Acts there was cedents, we may say that we regard the book as a very valuable addition
power to issue commissions to both London or country commissioners to the conveyancer's library.
unlimited in respect of locality ; both at common law under 29 Charles
2, c. 5, and 22 Vict, c. 16, and in chancery under 16 Vict. c. 78. The PARTITION ACTS.
reasoning in the Case of the Record Clerks (3 De G. M. & G. 723, not so
well reported in 23 L. J. Ch. 1002) appears to me to involve this, but THE PARTITION Acts, 1868, AND 1876: A MANUAL OF THE LAW AND
for the actual limitations in the old commissions, and these actual limitaPRACTICE OF PARTITION AND OF SALE IN LIEU OF PARTITION; WITH THE tions are now, in my opinion. swept away by the Act. DECIDED CASES AND AN APPENDIX CONTAINING JUDGMENTS AND ORDERS.
The Fines and Recoveries Act (3 & 4 Will. 4, c. 74, ss. 81, 82), as to Second Editiox, ENLARGED. By W. GREGORY WALKER, Barrister-at.
| acknowledgments of married women, does not appear to be affected by Law. Stevens & Haynes.
the Judicature Acts. The perpetual and special commissions under these This is a very good manual, practical, clearly written, and complete. Acts must be obtained from the Lord Chief Justice as representing the The subject lends itself well to the mode of treatment adopted by Mr. Chief Justice of the Common Pleas (see the Judicature Act, 1881, s. 26). Walker, and in his notes to the various sections he has carefully brought Ordinary commissioners cannot, under the Lord Chancellor's commission, take such acknowledgments, because they are not causes or matters in directing the trustee to take no further steps in the examination of witnesses the Supreme Court, and are not oaths, afidavits, or declarations.
| and not to commence litigation, the creditors being of opinion that no good Tem ple, Feb. 18.
R. 8. WRIGHT.
would result to the estate by further examination or litigation. The creditors, moreover, directed the trustee to distribute the estate left in his hands with:
out delay, and to take the necessary steps to close the liquidation as speedily ADMINISTRATION ACTIONS.
as possible, and that he should within four weeks call a meeting of creditors [To the Editor of the Solicitors' Journal.]
to consider the close of the liquidation, the release of the trustee, and the disSir,- In your issue of the 15th inst. you comment on Mr. Justice
charge of the debtor. When this resolution was passed the trustee had
realized all the assets, except what he might be able to recovering the contem. Manisty's refusal to make the usual administration order in the case of In
plated proceedings, and bad paid a dividend of 2s. in the round. The assets re Cottrell, Woods v. Cottrell.
which remained in bis hands were sufficient, after payment of expenses, to The facts of the case are not stated, except that the plaintiffs were pay a further dividend of 2d. in the pound. The persons against whom the specific legatees, that the writ was issued in 1880, a receiver appointed in trustee bad contemplated taking proceedings voted in favour of the resolutions 1881, and that the hearing came on in January, 1882 ; but we may infer (they baving proved as creditors) and so did a number of creditors for very from the quoted remarks of Mr. Justice Manisty that the trustees of the small sums. One creditor for a large amount dissented from the resolutions. will were respectable persons, and that the plaintiffs did not allege fraud, The trustee applied to the court for directions in the matter, and Mr. Registrar breach of trust, or misconduct of any kind on the part of the trustees.
Hazlitt made an order directing him not to act on the creditors' resolutions. Neither are we told who the residuary legatees were, or whether they
The registrar was of opinion that the resolutions had been passed for the sole approved of the estate being administered under the direction of the
purpose of favouring the debtors. In the Court of Appeal it was contended court. Assuming, as I imagine I may fairly do, that the residuary
that section 20 did not authorize the trustee to apply to the court for its legatees would have preferred that the trusts of the will should be carried
directions after tbe creditors had given him directions, and that in such a case
the court could not interfere, or that, at any rate, the resolutions being intra out by the trustees, I confess that I am not surprised that Mr. Justice
vires, the court could not interfere unless it was shown that there had been Manisty should consider it “ contrary to all notions of justice” and
actual fraud in the passing of them. The court (JESSEL, M.R., and BRETT “ gratuitously cruel to the parties” to make the order asked for.
and COTTON, L.JJ.) affirnied the decision of the registrar. JESSEL, M.R., Now I am well aware that it is the rule in the Chancery Division for said that section 20 could not mean that the court was to be subordinate to administration orders to be made as a matter of conrse, and this entirely the creditors ; the decision of the creditors must be subordinate to the power of irrespectively of the question whether the trustees have shown them. the court. He should have come to that conclusion on the words of section selves unworthy of confidence, or whether the majority of the parties in. 20 alone. But it must be taken in conjunction with section 14, which was in terested under the will oppose the application or not. I am aware, for pari materid. It was impossible to suppose that the same words, when used instance, that a pecuniary legatee of £500 may, without alleging any
with reference to a subsequent meeting of the creditors, were to be dealt with reason, have an administration order, although all the other legatees
differently from the way in which they were to be dealt with when used with (pecuniary, specific, and residuary) may be quite content to leave the
reference to the original meeting. The court must decide whether there was winding up of the estate in the hands of the trustees; and it is against
“ just cause". i.e., some substantial reason for not carrying out the credi.
tors' resolution. In the present case bis lordship agreed with the rogistrar this rule that I protest. In my humble judgment it would be more to
that there was just cause for not carrying out the resolutions. BRETT, L.J., the interest of the public if the judges of the Chancery Division were,
observed that section 20 said that the trustee was “to have regard to " the in such cases, to exercise a discretion, and not suffer themselves to be directions of the creditors; it did not say absolutely that he was to obey them, bound by what is, at the most, the practice of the chancery courts, and His lordship did not mean to say that it would be proper for the trustee, with. not the effect of any legislative enactment.
out coming to the court, to take on himself to aot contrary to the resolution I am only suggesting that each case should be decided on its own merits. of the creditors. The section assumed that he might summon a general If the judge thinks it a case in which it will be for the advantage of the meeting of the creditors and ascertain their wishes. It did not say in the parties generally that the estate should be administered under the direc. alternative that he might apply to the court for directions, but that he might tion of the court, or if the plaintiffs show that their interests are likely
also apply to the court-i.e., having ascertained the wishes of the creditors, he to be prejudiced by the administration being left to the trustees, then by
might apply to the court for its direction, and if he might apply to the court, all means let the order be made; but, on the other hand, I think it ex
| the court might make an order, COTTON, L.J., agreed in the construction of tremely cruel that such an order should be made, when it manifestly will
section 20, and he thought that the registrar had rightly exercised his power.
The exercise of the power given to the majority of the creditors must be carenot be for the benefit of any one of the legatees, and although nin e.
fully watched. It must be exercised for the benefit of all the creditors as tenths of them resist it.
such-.e., for the administration of the estate, so as to provide the best In the case of Woods v. Cottrell we are told that “there was no oppo- possible dividend at the earliest time. In the present case the majority of sition to the plaintiffs' claim at the bar.” Very likely. Counsel invari- the creditors appeared to have exercised the power for some indirect purpose, ably advise that such a claim cannot be successfully resisted, and, there- and this could not bind the dissentient minority.-SOLICITORS, Lumley g fore, however much their clients dislike the idea of administration by the Lumley; M. Abrahams & Co. court, when the case is called on they do not oppose. I should much like to see this question ventilated in your columns by those more com
EXTRADITION ACT, 1870, s. 8–"APPREHENSION " OF FUGITIVE CRIMINALpetent to deal with it than I am, and I firmly believe it would be found
DETENTION OF PERSON ALREADY IN CUSTODY-HABEAS CORPUS—APPEALthat very many solicitors will indorse the remarks of Mr. Justice Manisty
| JURISDICTION-JUDICATURE Act, 1873, s. 19.-In a case of The Queen v. in Woods v. Cottrell.
T. P. Weil, before the Court of Appeal on the 13th inst., a question arose as to the July 17.
power of issuing a warrant under the Extradition Act of 1870 for the detention [Perhaps the remarks, but hardly the decision. Judges are appointed
of a person already in oustody who is charged with baving committed a crime to administer the law, not to alter it.-ED. S. J.)
coming within that Act. And there was a further question as to the jarisdiction of the Court of Appeal to entertain an appeal from the refusal of & divisional court to issue a writ of habeas corpus at the instance of a person
who has been arrested or detained under the Extradition Act, and who alleges CASES OF THE WEEK.
that the proceedings have been irregolar. Section 7 of the Act provides that :-"A requisition for the surrender of a fugitive criminal of any foreiga
State, who is in or suspected of being in the United Kingdom, shall be made TRUSTEE IN BANKRUYTCY-DIRECTIONS OF CREDITORS-POWER OF COORT to a Secretary of State by some person recognized by the Secretary of State -RESOLUTION NOT PASSED BONA FIDE-BANKRUPTCY Act, 1869, ss. 14, 20. as a diplomatic representative of that foreigo State. A Secretary of State
In a case of Ex parte Cocks, before the Court of Appeal on the 14th idst.. may, by order ander his hand and seal, sigoify to a police magistrate that & queslion arose upon the construction of section 20 of the Bankruptcy Act, such requisition has been made, and require him to issue his warrant for the 1869, which provides that “the trustee shall, in the administration of the apprehension of the fugitive criminal." Section 8 provides that :-“ A war. property of the bankrupt and in the distribution thereof amongst his creditors, rant for the apprehension of a fugitive criminal, wbother accused or convicted have regard to any directions that may be given by resolution of the oreditors of crime, who is in, or suspected of being in, the United Kingdom may be at any general meeting," and that “ subject to the provisions of this Act, and issued-(1) by a police magistrate on receipt of the said order of the Secretary to such directions as aforesaid, the trustee shall exercise his own discretion in of State, and on such evidence as would, in his opinion, justify the issue of the management of the estate, and its distribution amongst the creditors.
the warrant if the crime had been committed or the criminal convicted in The trustee may from time to time summon general meetings of the creditors England ; and (2) by a police magistrate, or any justice of the peace in any for the purpose of ascertaining their wishes, he may also apply to the court, part of the United Kingdom, on such information or complaint and such in manner prescribed, for directions in relation to any particular matter evidence or after such proceedings as would, in the opinion of the person issu. arising under the bankroptcy.” Section 14 also provides, with reference to ing the warrant, justify the issue of a warrant if the crime had been comthe first general meetiog of the creditors, that the creditors “may, by resolution, mitted or the criminal convicted in that part of the United Kingdom in give directions as to the manner in which the property is to be administered which he exercises jurisdiction. Any person issuing & warrant under this by the trustee, and it shall be the duty of the trustee to conform to such section without an order froin the Secretary of State shall forth with send a directions, unless the court for some just cause otherwise orders.” In Ex parte report of the fact of such issue, together with the evidence and information or Cocks the trustee in a liquidation bad examined some witnesses with the view complaint, or certified copies thereof, to a Secretary of State, who may, if he of obtaining evidence to enable him to set aside as fraudulent preferences think fit, order the warrant to be cancelled and the person who has been certain payments which had been made by the debtors shortly before they apprehended on the warrant to be discharged." The question arose thus :filed their petition. Before he had commenced any proceedings for this pur. | One Weil, on his arrival on the 25th of May last at Queenstown from the pose, a meeting of the creditors was summoned by bim in pursuance of a United States, was arrested before he landed by an Irish police-constable, on requisition of some of the creditors. At the meeting resolutions were passed a charge of having committed a forgery at New York, The arrest was made
without any warrant, on the receipt of a telegram from a private inquiry agent under such an undertaking damages could not be given for the error of the in London. Weil was then taken before the resident magistrate at Queens court of first instance in granting the injunction improperly. COTTON, L.J., town, who, after hearing depositions, committed the prisoner for further ex however, said that, as at present advised, he could not concur in that view, amination. The magistrate on the 28th of May reported the arrest to the and BRETT, L.J., declined to express any opinion on the point.-SOLICITORS, Home Secretary. On the 31st of May, on further investigation, the magig. R. H. Ward ; F. & T. Smith fi Sons. trate issued a warrant to take the prisoner before the chief magistrate at Bow. street, to show cause why he should not be surrendered under the Act. The matter came before Sir James Ingham on the 2nd of June, and he remanded
WILL-CONSTRUCTION-DEVISE ON CONDITION THAT DEVISEE SHOULD the prisoner till the 8th of June, and again to the 15th of June. It was then RELINQUISH DEBT DUE TO HIM BY TESTATOR— DEATH OF DEVISEE BEFORE objected by his counsel that he was illegally in custody, because he had been
TESTATOR.-On the 18th inst. the Court of Appeal affirmed the decision of arrested without a warrant, and Sir James Ingham again remanded him for a
Fry, J., in & case of Kirk v. Kirk (ante, p. 245). A testator devised land to week, and represented the matter to the Home Secretary. The Home Secre
his son R., in fee, on the express condition that he, his executors or tary, on the 19th of June, issued an order to the chief magistrate, stating that
administrators, should, within three months after the death of the testator, a requisition bad been made to him by the Minister of the United States in give up all claim to a som of £3,400 which the testator owed him. And the this country for the surrender of Weil, and requiring the magistrate to pro
testator devised some other real estate to trustees on trust for sale and to ceed in conformity with the provisions of the Act. The prisoner was brought apply the proceeeds of sale, after payment of the deficiency (if any) of his up at Bow-street on the 22nd of June, and Sir James Ingham then issued a
residuary personal estate, to pay his debts (except & mortgage-debt and the warrant for his detention under the Act. It was read over to the prisoner debt due to R.), on trust for the testator's wife for her life, with remainder to while he was in the dock, and he was again remanded. On the 29th
some grandchildren of the testator. And he bequeathed the residue of his of June Weil was finally committed, and an pplication was then made
personal estate to the trustees on trust for conversion, and to apply the pro. to the Queen's Bench Division for a writ of habeas corpus, and was refused.
ceeds in payment of his debts (except the mortgage debt and the debt due to R.), In the Court of Appeal it was contended that the original arrest was
and to retain the surplus for the benefit of two sons of the testator. But, in illegal, and that all the subsequent proceedings were consequently irregular, and
case the residuary personal estate should be insufficient to pay his debts that there could not be an “apprehension "under the Act of a person who was (except as aforesaid), he directed that the deficiency should be paid out of the already in custody. The court (JESSEL, M.R., and Brett and Cotton, L.JJ.) proceeds of sale of the real estate which he had directed to be sold. R. died affirmed the decision. JESSEL, M.R., said there was a serious question to be con
before the testator, leaving no issue. Fry, J., held that the testator's intensidered at some time, if the case should ever arise, whether, having regard to the
tion was that, in any event, his residuary personal estate should be increased Judicature Acts, the Court of Appeal had jurisdiction to entertain an appeal
by the £3,400, and that the land which he had devised to R. must, notwith. from a divisional court in a case of this kind. This depended on a careful
standing the death of R., be charged with the payment of the £3,400. The consideration of the various sections of the Acts, and it was far too serious
Court of Appeal (JERSEL, M.R., and BRETT and COTTON, L.JJ.) took the and grave a matter for his lordship to give an off-hand opinion on it. If it
same view of the construction.-SOLICITORS, W. R. A. Kime ; G. A. Hall. were necessary to decide it, he should take time to consider it, and he should desire to bear further argument. For the present purpose he would assume the court bad jurisdiction. It did not, however, appear to him that the only
PRACTICE-TRIAL-ORDER THAT WITNESSES IN WAITING SHOULD WITH objection which could be fairly argued was one of such weight that the court
DRAW_RIGHT OF PARTY TO REMAIN. -In a cage of Usher v. Henwood, before ought to interfere by granting a habeas corpus. The question turned on the
the Court of Appeal on the 19th inst., the applioation being for leave to proper construction of section 8 of the Extradition Act. All the proceedings
adduce fresh evidence on the hearing of an appeal, it was mentioned in the in this case had been strictly regular, with the exception of the fact that the course of the argument that at the trial of the action an order was made original arrest was made without any warrant. The whole objection, then, that the witnesses, other than the one under examination, should leave the was that the magistrato's subsequent warrant was not a warrant for the court, and that the defendant, who was to be a witness on his own beball, "apprehension" of the prisoner within the Act. His lordship thought that remained in court notwithstanding this order. JESSEL, M.R., said that the such a construction would give too narrow & meaning to the word "appre
defendant ought to have withdrawn. Formerly it was supposed that when hension.” Strictly, it meant seizing or laying hold of a man and detaining such an order was made a party to the aotion was entitled to remain, bat him with a view to bis surrender. His lordship was not inclined to limit it that had been altered, and the practice now was settled that the parties to taking hold of a man who was not already in custody. If it was to be must withdraw like any other witness.-SOLICITORS, S. Roberts; R. thus limited, it would follow that a man who was already in lawful custody Chapman. could not be arrested at all under the Act, unless he was first set at liberty. This would not be a rational mode of construing the Act. Consequently, it
SOLICITOR-AUTHORITY TO COMPROMISE ACTION-UNDERTAKING NOT TO appeared to his lordship that the whole of the proceediogs were regular. BRETT, L.J., said that he would give no opinion on the very important ques.
APPEAL.-In a case of The Ship Douglas, before the Court of Appeal on the tion whether there was any jurisdiction to entertain an appeal in such a case.
19th inst., an important question was raised as to the autbority of a solici. If there was jurisdiction, he thought there was no ground for exercising it.
tor to compromise an action-viz., whether the client is bound, under tha He doubted whether there had been any irregularity in the proceedings, and
general authority of the solioitor, by & compromise for a consideration whether the policeman was not justified in arresting the defendant on reason
ontside the action. In the present case the solicitor was acting for the able grounds of suspicion for that which would have been a felony if com
client in two aotions by different plaintiffs, and he gave an undertaking pot mitted in this country. But, if he was wrong in making the arrest without a
to appeal from the judgment in one of the aotions, the consideration for the warrant, his lordship thought that the magistrate's warrant for the prisoner's
undertaking being the promise of the solicitor for the plaintiff to supply detention was a warrant for his apprehension within the Act. At any rate,
him with some information as to evidence in relation to the other action. if, when the prisoner was before the chief magistrate at Bow-street, there was
Notwithstanding the ondertaking an appeal was brought in the first action, evidence sufficient to justify his apprehension, the chief magistrate was and the plaintiff applied to bave the appeal dismissed, on the ground that justified in issuing a warrant for his detention. COTTON, L.J., said that he
it was brought in breach of the undertaking. The Court of Appeal (JESSEL, would not intimate any opinion one way or the other on the question of M.R., and BRETT and COTTON, L.JJ.) raised the question whether such an jurisdiction. He thought that the warrant issued by the Irish magistrate was andertaking could bind the client without his express authority, and some a warrant for the apprehension of the prisoner within the Act, and that the
difference of opinion between the members of the court was manifested, bat, requirements of the Act had been in substance complied with.-SOLICITOR, after a good deal of discussion, the case was adjourned to the Michaelmas W. D. Smyth.
Sittings, to enable the authorities to be fully investigated.-SOLICITORS, IF.
Batham ; W. A, Crump & Son. PRACTICE — INJUNCTION – UNDERTAKING AS TO DAMAGES — TIME TO ENFORCB-ERROR OF COURT.-In a case of Smith v. Day, before the Court COMPANY-WINDING UP-Costs of LIQUIDATOR-DISCRETION OF COURT of Appeal on the 17th inst., a question arose as to the enforcing of an under. - APPEAL BY LIQUIDATOR-APPLICATION FOR LEAVE OF JUDGE-COMPANIES taking as to damages, given by the plaintiff on the granting of an interlocu. Act, 1862, s. 95. In a case of In re The Silver Valley Mines Company, tory injunction. The action was commenced on the 4th of November, 1879, before the Court of Appeal on the 12th inst., a question arose as to the power to restrain an alleged interference by the defendant with the access of light to of the judge wbo has the conduct of a winding up to disallow the liquidator's the plaintiff's premises. On the same day the plaintiff applied ex parte for an costs out of the assets of the company, and there was the farther question injunction, which was granted by Hall, V.C., on the plaintiff's giving the whether it is proper that a liquidator should apply for the leave of the judge usoal undertaking as to damages. On the 27th an injunction was granted until before appealing from any order made in the winding up. In Jaly, 1881, judgment in the action, a similar undertaking being given by the plaintiff. several sharebolders in this company applied to Bacon, V.C., to have their On the 18th of February, 1880, the Court of Appeal dissolved the injunction. names removed from the register, on the ground that they had been induced On the 11th of November, 1880, the action was tried by Fry, J., and be to take sbares by fraud. On the 29th of July, 1881, the Vice-Chancellor granted a perpetual injunction. On the 21st of June, 1881, the Court of made an order removing the names, and directing that the moneys which the Appeal reversed his decision and dismissed the action. On the 17th of applicants bad paid on their shares should be repaid to them. This order was March, 1882, the defendant applied by motion to Bacon, V.C. (to whom the not drawn up until the 24th of August. Before the order was made a petition action had been transferred), for an inquiry as to the damages sustained by him bad been presented to wind up the company, but this fact was not known to by reason of the orders of November, 1879, and for payment to him by the the parties to the application. A winding-up order was made by Hall, V.C., plaintiff of the amount of damages when ascertained. Bacon, V.C., refused on the 26th of August. In the winding up the shareholders whose names bad the motion, and his decision was affirmed by the Court of Appeal (JESSEL, been removed claimed to prove as creditors for the sums which had been ordered M.R., and BRETT and Cotton, L.JJ.), who held that no damage for which to be repaid to them. The liquidator resisted the claim, but it was allowed the plaintiff was responsible had been proved. The court said that, as a by the chief clerk. The liquidator was advised that, under the circumstances, general rule, an application to enforce such an undertaking ought to be made, he was bound to contest the right of the shareholders ia question to be treated either when the injunction is dissolved before the trial of the action, or when as creditors, and that the whole matter ought to be argued in court. A sam. judgment is given in the action, though, under special circumstances, the mons was then taken out on behali of the liquidator, in the chambers of Hall, application might be made later. JESSEL, M.R., expressed an opinion that V.C., to reverse the decision of the chief clerk, Hall, V.C., adjourned th