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The Solicitors' Journal.
LONDON, JULY 29, 1882
by section 6 of the Highway Rate Assessment and Expenditure CURRENT TOPICS.
Act, 1882 (45 & 46 Vict. c. 27), which received the Royal assent on the 12th inst., “ in maintaining, replacing, or setting up mile.
stones on any highway, and in fencing by posts or rails or otherIT IS UNDERSTOOD that Mr. Justice North and Mr. Justice
wise a highway where such fencing is required for the protection
of persons travelling thereon against danger, shall be a lawful Day will be the Vacation Judges. The vacation chamber work
charge upon the highway rate." These words leave it optional of the Chancery Division will be transacted in the chambers of
with the highway authorities whether they shall keep up mileVice-Chancellor HALI.
stones or not, whereas it would have been better to make it compulsory. They also still lay those authorities open to the risk of a
surcharge by the auditor, in the possible event of that official not TAE VACATION REGISTRARS in the Chancery Division will be taking the same view as they do as to the requirement of the Mr. FARRER and Mr. CARRINGTON.
posts and rails. And last, though not least, inasmuch as the statute is in no case retrospective, they have failed to obviate the
necessity of each past expenditure on milestones being disallowed IT WILL BE SEEN from the list we publish elsewhere that, out by the auditor, of each disallowance being appealed against to of 108 candidates at the last Honours Examination of the Incor- the Local Government Board, and of each appeal being (we porated Law Society, 32 only obtained honorary distinction. presume) followed by a direction from that Board, under the Poor
Law Audit Act, 1848 (11 & 12 Vict. c. 91), s. 4, “ that the same
shall be remitted, upon payment of the costs, if any, which may Mr. GLADSTONE inspected the building of the Royal Courts of have been incurred by the auditor in the enforcing of such disJustice on Thursday, and expressed his satisfaction with the allowance." progress of the works and the effect of the Great Central Hall. There is no longer any doubt that the building will be ready for occupation at the commencement of the Michaelmas Sittings.
THE ROYAL COMMISSION upon Agriculture has reported in
favour of the extension of rating to personal property, and the AS THE SELF-ACCUSED PERSON who is now under arrest at
recommendation appears likely to find considerable favour. The
statute and case law on the subject is not a little curious. The Caraccas on suspicion of being concerned in the Phænix Park
Act of Elizabeth (43 Eliz. c. 2) provides for raising the rate “by murders had selected for his residence one of the few foreign topati
ew foreign taxation of every inhabitant, parson, vicar, and other, and of every States with which (so far as we have been able to discover) no occupier of lands. houses," &c., in a parish. There are clearly extradition treaty exists, it may be well to point out that extra- | two classes rateable under this statute: first. inhabitants. and. dition treaties establish no new principle, but merely define the
secondly, occupiers of lands; and, independently of authority, it manner in which a very long-established principle of international
would seem that it was intended to tax all personal property of law is to be applied. “It is declared by the public jurists,” says the inhabitant, as well as all real property of the occupier, and KENT (2nd ed., p. 113), citing Grotius, b. 2, ch. xxi., ss. 3, 4, 5;
that more detailed language was not employed because personal Vattel, b. 2, ch. vi., ss. 76, 77, and others, “ that erery State is
property was in general of so inconsiderable an amount, in combound to deny an asylum to criminals, and, upon application and
parison with real property, as hardly to be worth consideration. due examination of the case, to surrender the fugitives to the But it was he
But it was held, early in the seventeenth century, in Sir Anthony foreign State where the crime was committed. The language
Earby's case (2 Bulstr. 354), that a man ought not to be rated in of the authorities is clear and explicit, and the law and usage
isage a parish by reason of any property he had out of it, and this view of nations rest on the plainest principles of justice. It is the l of thes
be of the statute was confirmed in R. v. White (4 T. R. 776), duty of the Government to surrender up fugitives upon demand in which the court held that the property, to be rateable, after the civil magistrates shall have ascertained the existence of
kistence of must be visible, and that, therefore, money was not ratereasonable grounds for the charge, and sufficient to put the
able; but partly based its decision on the ground of the accused upon his trial. The guilty party cannot be tried and
inconvenience or impropriety of inquiring into the amount punished by any other jurisdiction than the one whose laws have
of a man's property, or “opening his bureau to see what been violated, and, therefore, the duty of surrendering him applies
he had got there.” For a long time, however, stock-inas well to the case of the subjects of the State surrendering as to
trade was rateable, although, in Reg. v. Lumsdaine (10 Ad. & the case of subjects of the Power demanding the fugitive. The
E. 157) and Reg. v. Capel (12 Ad. & E. 382), it was, without only difficulty, in the absence of positive agreement, consists in
effect, contended that the Parochial Assessment Act of 1836 (6 & drawing the line between the classes of offences to which the
7 Will. 4, c. 96) had the effect of exempting it. These cases led usage of nations does, and to which it does not apply, inasmuch as
to the passing, in 1840, of 3 & 4 Vict. c. 89, which, reciting that it is understood in practice to apply only to crimes of great
it was expedient to repeal the liability of “inhabitants as such" to atrocity, or deeply affecting the public safety." Upon this point
be taxed, enacts that " it shall not be lawful for the overseers of no difficulty is likely to arise in the present case.
any parish ... to tax any inhabitant thereof as such inhabitant, in respect of his ability derived from the profits of stock-in
trade, or any other property, for or towards the relief of the poor.” THE DISCUSSION on the question of the repairs of milestones has The Act, however, is temporary only, its first period of life having resulted very speedily in legislation on the subject. We fear, been till December 31, 1841, and has depended for its continuance however, that our correspondents will not be altogether satisfied upon “ Expiring Laws Continuance Acts,” by the last of which with the mode in which the Legislature has dealt with the matter. (44 & 45 Vict. c. 70) it now stands limited to expire on the 31st It is now made legal to keep up milestones on a highway; but we of December of the present year. A mere omission of the Act cannot think that the enactment by which this desirable change from the forthcoming “ Continuance Act” of the present session in the law has been effected is framed in the best possible manner. might, perhaps, have the effect of re-opening the questions raised * The expenses incurred by a highway authority," it is provided in Sir Anthony Earby's case and R. v. White,
THE QUESTION we discussed a few weeks ago (ante, p. 478), as of a coercive ecclesiastical jurisdiction. It is perfectly clear from to adjudicating bankrupts as traders persons who have carried on Walsall Overseers v. London and North-Western Railway (L. R. business, but ceased to trade, has, in a recent case of Ex parte 4 App. Cas., at p. 43), and other cases (as, indeed, it would be Salaman, reported last week (ante, p. 600), been again before the clear independently of any such high authority), that section 19 Court of Appeal upon two further points raised in that case. The of the Act of 1873 gives an appeal in every case, except where first point decided extends somewhat the previous decisions in Ex an express statutory exception can be found, but section 47 distinctly parte Schomberg (23 W. R. 204, L. R. 10 Ch. 172) and Ex parte says that no appeal “shall lie from any judgment of the High McGeorge (ante, p. 478), and it is now expressly laid down that Court in any criminal cause or matter," so that the question is the onus lies upon the petitioning creditor to prove that the narrowed down to the consideration whether proceedings in habeas debtor is a trader at the time of his committing the act of bank- corpus are proceedings in a criminal cause or matter. Some light may ruptcy alleged in the petition. It was contended that, the debtor be thrown upon this question by a reference to 56 Geo. 3, c. 100, having once been a trader, it was sufficient for the petitioning which allows the writ to be issued in vacation time, "where any percreditor to prove that fact; and that the onus then lay upon the son shall be confined or restrained of his liberty otherwise than for debtor to prove that he had ceased to trade; but the Court of | some criminal or supposed criminal matter." This shows, as, Appeal declined to accede to that contention. We notice with indeed, was held in Ex parte Lees (E. B. &. E. 828), and affirmed some satisfaction that, on the other point raised, the court displayed over and over again in the Tichborne case, that in matters a disposition rather to limit than to extend the application of the purely criminal-i.e., where the party is in execution on a casos referred to. The point was whether a debtor who had criminal charge after judgment on an indictment-the writ is not ceased to carry on trade, but with the intention of resuming it grantable, and also points the distinction between committal for again, could be adjudicated bankrupt as a trader, and the court held crime and committal for contempt of court; wherefore we think that he could, and that it was a question of intention, to be decided that the appeal in Dale's case was rightly entertained. But on the evidence, whether the debtor had discontinued his trade a more difficult question arises in connection with cases arising permanently, or whether he had only temporarily ceased to carry out of the Extradition Act. An extradition crime is clearly a it on with the intention of resuming it. In the latter case he is crime, and there is clearly a criminal cause or matter before the still a trader within the Act. It is not stated how long the tem- police magistrate when he entertains an extradition case. But porary cessation may be intended to last, but the judgment of the cause itself is intended to be proceeded with, not in this Lord Eldon in Ex parte Paterson (1 Ro. 105) was quoted by the country, but in the country to which the prisoner is to be sent Master of the Rolls as being still applicable. Lord ELDON in that under the extradition warrant. Does the exception in section 47 case said : “ That the bankrupt has ceased to be a trader does not apply to such a case ? On the whole, we are inclined to think it depend upon the fact whether or not you can find any specific acts does. By section 10 of the Extradition Act the party accused is of trading ; but whether or not, in point of intention, he had subjected to the rules of our criminal law as far as the preliminary ceased to be a trader. It is a question for a jury whether there investigation is concerned, and, as we think, sufficiently far to give was an entire cessation of trading, or merely an interruption, with rise to a criminal cause or matter in England within section 47. an intention of resuming it when opportunity should offer." But Moreover, if this be not sufficient, the case of In re Goodman our satisfaction upon this point is considerably marred by the (L. R. 17 Ch. D. 266), in which the Statute of Distributions was reflection that it will be anything but an easy task for a petition- held to have an international application, seems to show that our ing creditor to prove that such an intention to resume trade exists courts are more disposed to extend English statutes to foreign in the mind of the debtor. And, further, suppose the debtor spheres of application than to limit them to this country. On admitted his intention to recommence trade as soon as he had the other hand, it is hard that the Judicature Act, which seems settled with his creditors or got his discharge in bankruptcy, but to have the effect of depriving an unsuccessful applicant for not before, would that constitute him still a trader within the deci- habeas corpus of his right (see Reg. v. Bairies, 12 A. & E. 232, 1 sion ? We should, though with much hesitation, say not. Again, Cr. & Ph. 31) of applying from one court to another, should not if the facts should be that the debtor was giving up business for at the same time confer a right of appeal. the purpose of undertaking some special employment, or of going abroad for some months, but on his completing that engagement, or returning to this country, he would, if an opportunity offered itself, resume his former or some other kind of trade, would he,
SOME DISCUSSION has arisen amongst members of the profesafter he had given up his business, be a trader within the Act?
sion as to the probable effect of clause 8 of the new Bills of Sale We have still greater doubt in such a case, and all that is clear to
Bill—if it should pass into law-which says that “every us is, that it will require some further decision to set our doubts at
bill of sale shall be registered within seven clear days after the rest.
execution thereof, ... otherwise such bill of sale shall be void in respect of the chattels comprised therein.” As regards
bills of sale executed after the commencement of the new Bill, AN IMPORTANT QUESTION upon the application of section 19 of this clause clearly renders all such, if not registered, void for all the Judicature Act, 1873 (which gives a general right of appeal purposes whatsoever, thereby apnulling the law as laid down in from the High Court “ subject" as therein mentioned), to cases Davis v. Goodman (L.R.5 C.P.D. 128). But as regards unregistered arising out of the Extradition Act, arose in the recent case of bills of sale executed before that date, the effect of the clause is Reg. v. Weil (ante, p. 597). The prisoner, who had been arrested not so obvious, when we take into consideration clause 3 of the for an alleged extradition crime, appealed to the Court of Appeal same Bill. Clause 3 says, “This Act shall, so far as is consistent from the refusal of a divisional court to grant him a writ of with the tenor thereof, be construed as one with the principal habeas corpus, it being enacted by the Extradition Act, 1870 (33 (1878) Act, but, unless the context otherwise requires, shall not & 34 Vict. c. 52), that “if the police magistrate commits a fugitive apply to any bill of sale duly registered before the commencecriminal to prison, he shall inform such criminal that he will not ment of this Act, so long as the registration thereof is not avoided be surrendered until after the expiration of fifteen days, and that by non-renewal or otherwise.” Why, one is naturally led to ask, he has a right to apply for a writ of habeas corpus.” The court dis- | does this clause specially exempt registered bills of sale from the missed the appeal on the ground that, assuming there was juris operation of the new Bill, unless it means that unregistered bills diction, the facts showed no ground for the exercise of it, but of sale are not to be exempt from its operation ? But, if not thought that, “having regard to section 19 of the Judicature exempt from its operation, it is evident that such bills of sale Act, 1873, and other provisions of the Act, it was a serious must, on the commencement of the new Bill, be void under section question whether the court had jurisdiction to entertain an 8, already quoted. In spite, however, of the very careful exappeal in such a case," but they declined to express an opinion | clusion of " duly registered” bills of sale from the operation of one way or the other on the question. Inasmuch as in Dale's the new Bill, the better opinion seems to be that clause 3 excludes case (L. R. 6 Q. B. D. 376) the court entertained an appeal all bills of sale executed previous to the commencement of the new from the grant of a habeas corpus, it becomes also of consequence Bill from its operation, and that the clause must be read as if it to inquire whether there is any difference between a case arising ran, “ But, unless the context otherwise requires, shall not apply out of the Extradition Act and a case arising out of the exercise to any bill of sale executed before the commencement of this Act”--the remainder of the clause touching the renewal of regis- were not issued by the Post Office before July, 1881. Upon this tration being unnecessary, as this is provided for under the 1878 HENRY BOWDITCH was committed to take his trial at the Summer Act. All one can say is, that if, on the one hand, the framers of Assizes for perjury. Counsel for the defence urged that the the new Bill intended that unregistered bills of sale executed evidence in question was not material to the issue; that whether before its commencement should come under its operation, they the stock on the farm belonged to WALTER MULLETT or H. W. should have distinctly said so, and if, on the other hand, they in- MULLETT did not necessarily depend upon who was tenant of the tended them to be subject to the old law, this clause should have farm, for in numbers of instances rent was paid by the person been drafted as we have suggested. As it stands it is difficult to who did not own the property on the premises. Lord Justice say what good purpose can be served by such an elaborately- LINDLEY, before whom the case was tried, brushed these objecdrawn distinction without any real difference, unless it be con- tions aside, and the prisoner was convicted, and sentenced to four sidered a desirable thing to create confusion in the minds of those months' imprisonment. who have to do with bills of sale.
A PARAGRAPH, ending as follows, has appeared in many of the IT HAS BEEN STATED that the first person arrested in Ireland papers concerning the tragedies at Manchester :-"The jury under the Prevention of Crime Act for an offence alleged to have found that Newby murdered the girl, and in his case they been committed in a proclaimed district was promptly discharged returned a verdict of felo-de-se. His body is to be buried in the upon the representation of his solicitor that the proclamation pro- usual way at midnight by the police.” It seems to have escaped claiming the district had not been “stuck up" as required by the notice of the authorities—if this account is correct—that on the proclamation. The discharge of the prisoner may have been the 3rd of July a new Act came into operation (45 & 46 Vict. c. both proper and prudent, but we fail to see how it was authorized | 19), which says, section 3, that “such coroner or other officer by law. The 23rd section of the Act prescribes that “the Lord- shall give directions for the interment of the remains of such Lieutenant . . . may, , . . by proclamation, declare the felo-de-se in the churchyard or other burial-ground of the parish provisions of this Act, which relate to proclaimed districts, or or place in which the remains of such person might be interred, any of those provisions, to be in force within any specified part of if the verdict of felo-de-se had not been found against such Ireland, as from the date of the proclamation, or any later date, person.” Burial in the public highway, and the thrusting of a ... and the provisions of this Act which are mentioned in the stake through the body, is declared to be no longer legal, but the proclamation shall, after the said date, be in force within such use of any religious rites or ceremonies is not authorized. specified part of Ireland, and that part of Ireland shall be a proclaimed district within the meaning of the provisions so mentioned.” “The proclamation," it is added, “shall provide for the manner of the promulgation thereof." If there had been nothing more than this, it might have been doubtful whether a LIABILITY OF TRUSTEE FOR FAILURE proclamation could be in force without being “promulgated." But section 24 prescribes that “every proclamation shall be pub.
OF STOCKBROKER. lished in the Dublin Gazette, and that the production of a A CASE recently decided by Vice-Chancellor Bacon caused a panic printed copy of the Dublin Gazette . . . containing the pub- among business men when it was shortly reported in the newslication of any proclamation . . . shall be conclusive evidence papers. The learned judge, it was thought, had dealt out very hard of the contents of such publication, . . . and, in the case of a measure to a trustee who had acted with regard to the trust funds proclamation, that the district specified in such proclamation is a as any ordinarily prudent man would have acted with regard to proclaimed district, . . . and that the said proclamation has his own money. The Stock Exchange was greatly excited, been duly promulgated.” Either in the event of the proclama- because the decision was thought to render it unsafe for trustees tion failing to direct any particular promulgation, or in the event to remit trust funds to brokers in payment for purchases of of the directions of the proclamation not being complied with, it stocks made by them. These exaggerated apprehensions will seems perfectly clear that the publication of the proclamation in probably be removed by a perusal of the report of the case (In the Dublin Gazette affects all her Majesty's subjects with con- re Speight) which appeared in last week's issue of the WEEKLY structive notice of the contents. The provision that the pro- REPORTER (p. 785), but there is a good deal of serious warning clamation shall provide for the manner of promulgation is to trustees in the decision. “ directory” only, and appears to have been inserted for the Some of the misapprehension which has resulted may, perhaps, purpose of giving more abundant warning. But 'it would have be due to the lack of clear explanation by the Vice-Chancellor of been better if the statute itself had directed a particular manner the principle on which his decision was based. That principle is of promulgation.
one of the most firmly established in the whole law of trusts. It is that a trustee must not transfer to another the confidence
which is vested in him. Except in case of necessity he must not A CURIOUS CASE of perjury has just been tried at the Dorset place the trust property under the control of another person, This Summer Assizes. Judgment was recovered by one DRAKE was well stated by Lord Cottenham, with reference to an execuagainst one WALTER MULLETT, a small farmer, in the autumn of tor, in the case of Clough y. Bond (3 My. & Cr. 496). He said : last year, and upon execution being levied upon the goods and | |“ Although a personal representative, acting strictly within the stock on WALTER MULLETT's farm, his son, HENRY WILLIAM line of his duty, and exercising reasonable care and diligence, MULLETT, claimed them as his, and the sheriff interpleading, the I will not be responsible for the failure or depreciation of the fund trial of this issue came on before Lord COLERIDGE at the Dorset in which any part of the estate may be invested, or for the Winter Assizes. In support of H. W. MULLET's claim to the insolvency or misconduct of any person who may have possessed it, goods and stock, and as tending to show that the goods and stock yet, if that line of duty be not strictly pursued, and any part of belonged to him, HENRY BOWDITCH, the landlord, a cousin of the property be invested by such personal representative in funds the MULLETTS', was called to prove that the farm was let to or upon securities not authorized, or be put within the control of H. W. MULLETT, and not to WALTER MULLETT. In the course persons who ought not to be intrusted with it, and a loss be of his examination three half-yearly receipts for rent were put thereby eventually sustained, such personal representative will be into the hands of HENRY BOWDITCH, made out to H. W. liable to make it good, however unexpected the result, however MULLETT, and signed by the witness; and in cross-examination, little likely to arise from the course adopted, and however free after being cautioned, he swore that the three receipts in question such conduct may have been from any improper motive." And had been signed by him on the days on which they respectively after referring to the case of unauthorized securities, Lord Cottenbore date. A clerk from the Post Office was then called for the ham added, “So, when the loss arises from the dishonesty or execution creditor, who proved that the receipt-stamps (the new failure of any one to whom the possession of part of the estate has postal and inland revenue stamps) upon the three receipts, which been intrusted, necessity, which includes the regular course of respectively bore date April and December, 1880, and May, 1881, business in administering the property, will in equity exonerate
the personal representative. But if, without such necessity, he course as a prudent man would have pursued with reference to his be instrumental in giving to the person failing possession of any own affairs. part of the property, he will be liable.” By "necessity” in this There was, as we have said, no absolute necessity for the trustee passage Lord Cottenham must be taken to mean what Lord Hard- to employ the broker or to place under his control the trust money ; wicke called “moral necessity," and which he thus defined : was there, then, any “moral necessity” to use Lord Hardwicke's “Moral necessity is from the usage of mankind ; if a trustee acts | term ? That seems to depend upon whether it is the usage of manas prudently for the trust as he would have done for himself, and kind or the regular course of business for persons to employ brokers according to the usage of business, ... the trustee is not to invest money in corporation securities; or, having employed answerable. So in the employment of stewards and agents. For them and received from them a bought-note, clearly showing that none of these cases are on account of necessity, but because the the securities have not been purchased in the market, but obtained persons acted in the usual method of business, (Ex parte Belchier, from the corporations themselves—whether it is the usage of manAmbl. 219).
kind and the regular course of business to draw a cheque for the In the last-mentioned case it was held that, if a trustee, acting amount to be invested payable to the broker. Practically these in the usual method of business, employs a broker, in good credit country corporation securities are, probably, of too recent origin for at the time, to sell a portion of the trust estate, and the broker any general course of business or usage to have become established. fails while the produce of the estate is in his hands, the loss will It appears, however, that in the recent case two stockbrokers fall on the trust estate. In like manner, there can be no doubt, of great eminence were called who said, “It is the custom when upon the principles above laid down, that a trustee employing a we buy for clients to take a cheque in order that we may pay the broker to purchase in the market stocks usually dealt with through vendor of the stock"—that is to say, it was apparently attempted brokers, and remitting to the broker trust money, will not, in the to set up a custom that a man who employs a broker and takes absence of any circumstances showing negligence in the trustee, be from him a bought-note must always, under all circumstances, pay responsible for the failure of the broker. But if the trustee omits the broker. This Vice-Chancellor Bacon described as an unlawful to take proper precautions for the safety of the trust property-as, custom, and it certainly is far too sweeping and too serious in its for instance, if having employed the broker to invest the trust consequences to be admitted as an excuse for a trustee on Lord money in Exchequer bills, he leaves them undistinguished in the Hardwicke's ground of “moral necessity." One would have hands of the broker, who misapplies them—the trustee will be thought that the proper course for the trustee in the recent case personally liable (Matthews v. Brise, 6 Beav. 239).
would have been to call a number of stockbrokers in the neighThese being well-settled principles, let us now consider how | bourhood of the towns in whose corporation securities the investthey were applied in the recent case. The facts were
ment was intended to be made, to testify that they were in the these :-A trustee, having power to invest in the securities
constant habit of negotiating such investments for business men, of any corporation, resolved to invest £15,000 of the trust
and always received payment in cheques payable to them. This funds on the security of the loans or debenture stock of would have come much nearer to that usage of mankind, or regular the Leeds, Stockton, and Huddersfield Corporations. Now,
course of business, which has been admitted as an excuse for the money might have been lent to the corporations, or the
trustees. The fact that no such limited practice seems to hare debenture stock might have been purchased from them, directly been set up may, probably, be accepted as showing that it did not without the intervention of a broker. It was not denied that the trustee, who lived in the neighbourhood, was acquainted with the The most important question is, What are the practical consecircumstances connected with these corporation securities. The quences of the recent decision to trustees? There are, we believe. trustee, however, instructed a broker in good repute to effect the
many classes of securities constantly bought through brokers which investment. This broker, a few days afterwards, presented to the
need not, strictly speaking, be bought through them. Investments in trustee a bought-note purporting to be a contract for the purchase
London and North-Western Railway Debenture Stock, for instance, of three several sums respectively of Leeds, Huddersfield, and
if we are not mistaken, can, or could some time ago, be effected Stockton Corporation Debenture Stock. This document was
through the secretary of the company, and probably our readers irregular in many ways; no account day was fixed; no commis
will be able to suggest numerous other important classes of sion was charged (which showed that the contract had been
securities to which the same observation applies. Is it meant entered into, not in the market, but with the corporations them
that in all these cases trustees are not justified in employing a selves, who, in such cases, paid the commission themselves); and
broker and will be responsible for his failure if they employ him? there were no such securities as Huddersfield Debenture Stock.
We apprehend that the utmost extent of the decision is this :- If The trustee, however, on the same day, gave the broker cheques
the bought-note is not in regular form, and shows on the face of payable to him for the £15,000 odd stated in the bought-note as
it that the broker has not purchased in the market, but that the being the sum due. This was on the 24th of February, but the
money is to go to the body issuing the security, the trustee's trustee did not get any debenture or other security or any receipt | cheque must be made payable to that body, and not to the broker. in return for his money. He often asked the broker for such
If the bought-note is in the regular form, and does not, on the face security, but was put off by various excuses until the 28th of of it, contain anything to show that the security has not been March, when the broker filed a liquidation petition and then I bought in the market, the trustee will be safe in making his absconded. No part of the £15,000 was ever recovered. Under | cheque payable to the broker. these circumstances Vice-Chancellor Bacon held that the trustee was personally responsible for the £15,000.
Now, looking at these facts in relation to the principles The President and Council of the Incorporated Law Society above cited, what do we find ? Why, first of all, that there dined with the Lord Mayor at the Mansion House on Thursday was no absolute necessity for the trustee to employ a stock - evening. broker to effect the investment. The trustee, who lived in the On the vote in the House of Commons, on the 24th inst., to complete the neighbourhood of the borrowing corporations, must have known, sum of £117,200 for the new Courts of Justice, Sir R. Cross inquired when it or, if he did not know, could have ascertained on inquiring of the was proposed that the new courts should be opened. Mr. Shaw-Leferre said town clerks, that the securities would be issued by the corporations
some delay bad been caused by the death of Dr. Street, the architect. He directly. Secondly, even if the broker were employed, there was the judges would be able to enter opon their duties in it on the first day of
hoped, however, that the building would be thorougbly completed and that no necessity to make the cheques payable to him. The bought-term after the long vacation. Mr. Sclater-Booth hoped the right hon. gentlenote clearly showed that the contract was with the corporations man would be able to give some assurance to the committee that the present themselves, and that the money was to go to the corporations, and law courts in Westminster Hall would be pulled down. Mr. Shaw.Lefevre had
not yet consulted the Government on this matter, but hoped that the coure any prudent business man would have arawn cheques payable to indicated by his right hon. friend would be pursued. There was a certain the officers of the corporations, and not to the broker. Thirdly, obligation to the public that the old courts should be pulled down so that the instead of ascertaining that the money had reached the corporations exterior of Westminster Hall might be seen. What tbe general effect would and insisting on having given to him at once corporation securities, I be was at present a matter of doubt. He believed Sir Charles Barry was of the trustee allowed himself to be deluded for over a month with
opinion that the general architectural effect would not be altogether satisfacvarious excuses by the broker,
"tory, and that he had contemplated another wing of the Houses of Parliament, This was certainly not such a but, in regard to this, so decision had been arrived at,
hands of the landlord, and to give it to an official who should be THE LAW OF DISTRESS.
responsible for its proper conduct. They suggest, indeed, that The report of the Select Committee of the House of Commons
the bailiffs should be approved by the county court judge of the appointed to consider the law of distress, which we were enabled
district in which they act, and be subject to removal by him for
extortion or misconduct, but this would obviously be insufficient. to print last week, bears out, to a considerable extent, the views which have often been set forth in these columns.
The whole process should be put on the footing of an execution, The practical question at present is not whether the land
and be carried out by the officers of the law and not by the agent
of the landlord. lord's right of distress should be swept away, but whether it should not, on the one hand, be restricted and made
With regard to the costs of distress, the committee make the less oppressive to the tenant, and, on the other hand, be
useful suggestion that in cases above the limit fixed by the Act made simpler, safer, and more speedy for the landlord. The
they should be subject to taxation by the registrar of the county arguments for and against the existence of the right are very |
court. We think there can be little dispute as to the advisability ably stated in the report, and the committee come to the conclusion
of this change, or as to the further suggestion that the limits of tbat “a period of commercial and agricultural depression would
£20 distress, regulated by the Act of 1817 (57 Geo. 3, c. 93), be be very inopportune for the abolition of the right, which would of
raised to £50, and that the allowance in the schedule of that Act necessity impair the existing system of credit given by the land
for a man in possession be raised from 2s. 6d. to not exceeding lord to the tenant, and cause serious inconvenience. . . .
The proposal to restrict the right of distress to one year's rent, Upon a careful review of the evidence placed before them, your committee are of opinion that a law of distress should be retained.
and that the right should be exercised within six months after The evidence seems to them to favour modification rather than
such year's rent has become due, is also, we think, reasonable. It is abolition of the law.” We have never hesitated to express our
certainly unfair to other creditors that the landlord should be opinion that the grievances alleged in connection with the prin
allowed to sleep upon his remedy until six years' arrears have
become due, and it is anomalous that the restriction to one year's ciple of the law of distress have been grossly exaggerated, and that the only result of the abolition of the law would be to substitute
rent in favour of the other creditors of the tenant should only exist for the landlord's right of distress a system by which either
in case of the bankruptcy of the tenant. personal security for the rent would have to be given, or rent
The committee propose to extend the principle of the Lodgers' would have to be paid in advance, or an express power of distress
Goods Protection Act to agisted stock, machinery not the would be inserted in every lease. It is impossible to see how the
property of the tenant (such machinery is constantly now-a-days tenant would be a gainer by the change.
borrowed on the hire system], and animals, not the property of the At the same time, we have always strenuously advocated
tenant, temporarily upon the holding for breeding purposes. To the amendment of the law. As it stands at present, a
this we can see no reasonable objection, except that it will render
| it necessary for landlords of grazing farms to stipulate in their distress is an arbitrary and oppressive process, full of danger and prospect of litigation to the landlord who employs
leases or agreements that not more than a certain number of it. Hardly any step can be safely taken in it without a
animals shall be taken by the tenant to agist; otherwise, it is
obvious that the landlord might at certain seasons be altogether knowledge of the law which no one but a lawyer is likely to possess, yet the landlord has to trust to the execution of
deprived of his remedy by distress. the process by an auctioneer, whose first step'is to procure the
Lastly, the committee propose that the time a bailiff may execution of a document, making the landlord liable for his
remain in possession under a distress may, at the request of the irregularities. We believe we are not exaggerating when we say
| tenant, and on his giving security for the costs, be increased from that there are comparatively few distresses levied in which some
five to fifteen days, and that, in such case, no sale shall take place opening might not be found for litigation on the part of an
sooner, except at the request or with the consent of the tenant ; exasperated tenant. On the other hand, the law, as it stands,
also, that at the desire of the landlord, or of the tenant, the goods affords very insufficient protection to the interests of the tenant.
of the tenant may be removed for sale to public auction-rooms or The appraisement of the goods is made by men who are allowed
some other fit place. The first proposal" merely represents the to purchase them at the appraised value, and have, therefore,
frequent practice under which the landlord obtains a written every inducement afforded to undervalue them. The solitary
consent by the tenant for his remaining on the premises for a longer security of the appraiser's oath was removed by a clause in the
time. The period of five days is far too short for proper advertiseParish Constables Act, 1872 (35 & 36 Vict. c. 92), s. 13. The
ments of the sale, and for proper arrangements to be made, yet if appraised value is presumed to be the criterion as to whether the
the landlord does not sell or remove the goods within a reasonable goods bave been sold at the “best price,” as required by the 2
time after the five days, he is liable to an action of trespass by the Will. & M., sess. 1, c. 5, s. 2; hence the tenant has little security
tenant. The suggestion as to removal of the goods for the purpose that the sale will be fairly made. And as no scale of charges is
of sale will need careful consideration if ever a Bill is drafted to specified for distresses for rent above £20, notwithstanding the
carry out the recommendations of the committee. rule which has been laid down that such charges must be reasonable, exorbitant charges are constantly made; and, moreover, the tenant who wishes to tender the rent and costs is unable to ascertain what amount he ought to tender for costs.
According to Kemp's Mercantile Gacette the number of bills of sale published The committee recognize many of these evils, but fail to specify l in England and Wales for the week ending July 22, was 812. The number in detail the remedies for some of them. They say that the con- in the corresponding week of last year was 938, showing a decrease of 126, solidation of the numerous and complicated statutes relating to the being a net decrease in 1882, to date, of 969. The number published in Irelaw of distress is a matter for the consideration of experienced land for the same week was 26. The pumber in the corresponding week of lawyers rather than for the decision of the committee. “This
last year was 23, showing an increase of 3, being a net decrease in 1882, to
date, of 240. question is one of importance, and if the law of distress should be
At the Nottingham Congress of the Social Science Association, to be held maintained, it should not be forgotten," and they add that, “ Most
on September 20—27, the following are the special questions as to Jurispru. of the witnesses who expressed themselves in favour of a retention dence and the Amendment of the Law:-International and Municipal Law of the law, at the same time advocated considerable modifications Section.-1. Is it expedient to make the devolution of real property in cases in its provisions. Those who desired the total abolition of the of intestacy follow that of personalty ? 2. Is it desirable to abolish trial by
jury, and, if so, in what cases ? And where trial by jury is retained, is it law were of opinion that cheaper and more speedy means of re
expedient to require an unanimous verdict ? 3. Is it desirable to extend, and, entry, in the event of non-payment of rent, must be given to the if so, how far, the civil jurisdiction of local courts ? Repression of Crime landlord.” The committee may well be excused from attempting Section.-1. Is it desirable that defendants in criminal cases should be comto explain in detail how the process should be simplified and petent to give evidence, and is it desirable that their husbands and their wives amended, but they might have indicated the general lines on
should be both competent and compellable to give evidence ? 2. Is it desir.
able that fines should be allowed after a certain number of convictions for which the change should be effected. They omit to draw attention
drunkenness within a certain period ; or that a month should remain as the definitely to the true remedy for most of the evils attending maximum imprisonment? 3. How may the efficien y of prisoners' aid distresses namely, to take the process altogether out of the societies be best promoted ?