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say, for example, about your observation last week in reference to a form CORRESPONDENCE.
of assignment of leaseholds in “ Prideaux" containing an express power of sale and leasing, and to a foot-note which runs, “As this power of
sale and leasing is somewbat special, it is retained instead of relying on COMMISSIONERS TO ADMINISTER OATHS.
the statutory power" ? Upon that you remark, “We do not pretend to
be quite sure that any opinion about the power of leasing has been ex. [To the Editor of the Solicitors' Journal.)
pressed.” But this by the way, I only mention it 'as a sample of an Sir,- As an old master extraordinary in chancery, and commissioner exegetical method " which puzzles over verbal niceties, while ordinary for taking affidavits in the Court of Queen's Bench, &c., I am appointed people, concerned about substance rather than symbol, accept the for “ so long as it shall please us,” which is practically for my life, and language if practically clear and workable. authorizes me to take affidavits upon which perjury might be assigned, Your latest perplexity is to know how leaseholds for years can be without regard to my being in practice, or to my occupation ; for in- shown to be within section 18, so as to confer on mortgagors and mortstance, were I to go into another profession, or enter into trade, I may gagees of leaseholds the statutory powers of leasing. Does "land," still, I take it, lawfully administer oaths until my appointments are you ask, in the light of the interpretation clause (which says it includes specially revoked.
' land of any tenure and tenements and hcreditaments"), include a term By the Judicature Act, 1873, commissioners to take oaths or affidavits of years ? That is, does “land of any tenure” include a term of in the Supreme Court are now appointed by the Lord Chancellor, and the years ? Well, that seems very much like asking whether there is such form of appointment used appoints “A. B., of --, being a practising a thing as leasehold land. Davidson and other authorities have familiarized solicitor, to be a commissioner to administer oaths in the Supreme Court us with the expression “leasehold hereditamente," and the definition of of Judicature in England so long as he shall continue to practise as a a lease for years as a contract for possession of hereditaments and for a solicitor.” The validity of the oath and the consequent result of a pro- recompense, &c. (Bac. Abr. tit. “Leases "), seems to describe a holding secution for perjury in respect of an affidavit sworn before a commis- or tenure. But let us turn to the Conveyancing Act, and there we find sioner appointed under tho Judicature Acts, appears to me, so far, to that it speaks of " freehold land"; "leasehold land"; "land held by depend upon whether or not the commissioner, before whom such affidavit lease” (section 3, sub-section 4); "land not of inheritance” (section 58, is sworn, was at the time" practising as a solicitor.”
Bub-section 2); "land comprised in a term of years” (section 65, subHow is this fact to be ascertained ? in other words, when does a section 2); "land held for the residue of a term” (section 65, subsolicitor cease to“ practise" as such ? Does it depend on his keeping an section 5); "land subject to any incumbrance" (section 5) (and "inoffice or clerk, or painting up his name, or taking out his annual certifi. cumbrance” includes a mortgage in fee or for a less estate”]; and, cate, or what? Not altogether the latter I take it, for a solicitor may in this very section 18, a mortgagor of land, as against every incum. surely advise and do many other matters without a certificate, though he brancer"; “the term whether subject to any incumbrance or not" may not be able to sue for costs, and, perhaps, may be liable to penal. (section 65, sub-section 2); and the list might easily be extended. ties, but still may he not "practise," and lawfully administer an oath It will hardly be denied that land of leasehold tenure is referred to in or take a declaration (not charging for it), though uncertificated at the some of these passages ; it is difficult to see, therefore, how the definition time?
"lands of any tenure can excludə it.
Again, I submit that the It seems to me that were solicitors appointed commissioners whilst expression “mortgagor of land," taken to the interpretation clause, is practising as such, and whilst having a certificate, it would remove all seen to include leasehold land, because of the meanings there given to difficulty, as the fact of a solicitor having a certificate at the date of mortgage and “property. And if " mortgagor of land" in section swearing an affidavit, &c., could always be ascertained by reference to the 18 does not include leasehold land, then "conveyance of land” in section register kept by the Incorporated Law Society in its official character 6 (" General Words ") does not include leasehold land, which is absurd. of registrar of solicitors' certificates. Many solicitors of respectability July 19.
H. omit annually to renew their certificates within the proper legal time ; is, therefore, an affidavit sworn before such an one during the week or [We may, probably, safely leave our correspondent's preliminary month, perhaps, whilst he has let his certificate lapse, invalid ?
remarks upon our tendency to hair-splitting to take care of themselves. Bristol, July 26.
With regard to the rest of his observations we reply that :-
1. The phrase "leasehold land," when it is used to denote the quantum of the interest, is, in our opinion, a very loose and inaccurate sort of
language; but we understand what it means. Tho Act sometimes says [To the Editor of the Solicitors' Journal.]
“ leasehold land” when it means “leasehold land "; therefore (argues Sir, I am glad to find by the copy of counsel's opinion appearing in
our correspondent), it probably means "leasehold land” when it says your last issue that he entirely concurs in my view that the limitations something else. in the old commissions are now "swept away by the Act” (the Judicature 2. The Act has lumped together a most extensive definition of land, Act, 1873). If it were otherwise it would be impossible to estimate the containing among its heterogeneous components several things (corvast amount of mischief already caused, and the inconvenience which rodies and personal annuities, for instance) which need perpetual excluwould arise in future, to say nothing about the anomaly of recently sion by a "contrary intention." We have a right to expect that such & appointed commissioners enjoying greater privileges than the old com- definition shall, at all events, not lack anything needful. Moreover, missioners.
since the Act frequently declines to rely upon its definition, by substi. As regards the express official prohibition as to taking amidavits tuting special phraseology in numerous places, we have a right to expect within the precincts of the offices of the court,” I venture, with great that, in the few places where it does use the phrase "land," it shall use deference, to submit that no official, even of the highest standing, can the phrase in its own elaborately prescribed sense. prohibit what an Act of Parliament sanctions.
3. It might easily be denied that "land of leasehold tenure" is I regret to differ from you, Sir, as to the meaning of the words referred to in the passages cited by our correspondent, for the simple “ place of business” (although in the view taken by the learned counsel reason that no such tenure was ever known to the English law. The and myself this point is immaterial), for I consider the solicitors' waiting rest of our correspondent's remarks exhibit, in great perfection, those room in the Royal Courts of Justice is as much his place of business as qualities which characterize the style of the Act itself
. How does & the Corn Exchange or Stock Exchange is that of the corn miller or farmer meaning assigned to mortgage and property, or to incumbrances, fix the and stockbroker respectively. As to the exception (“other than the meaning to be given to mortgagur of land? Would it not, at all events, Bankruptcy Court") mentioned by Mr. Wright in his opinion, I would have been much better if the latter phrase's meaning had been fixed by for the information of your readers, draw attention to the Bankruptcy the meaning assigned to its own words ? And if what the Act says in Rules of Procedure, 1869. Rule 167 provides that "any afidavit used section 6 " is absurd,” that is really no business of ours.-Ed. S. J.] in any matter of bankruptcy may be sworn as follows": -" (1) or before a person authorized to administer oaths in any of the superior courts of law or equity.”
G. B. Bedford-row, July 27.
Hon. Stephen Longfellow, of Maine, says the Central Law Journal, when any objection or qualification was made by the court to a point he was pressing
upon its attention, being too courteous to question or oppose the judge, would THE CONVEYANCING ACT—"ARE LEASEHOLDS WITHIN escape by this formola, ." But there is this distinction, may it please your SECTION 18?" its existence could only be discerned by the learned gentleman himself
. This [To the Editor of the Solicitors' Journal.]
little mannerism was observed by his friends in the profession, one of whom com. Sir, Yon contrive to extract encouragement from the recent decision Born, &c. Died, &c. With this distinction, That such a man can never die."
posed and passed round this
epitaph : " Here lies Stephen Longfellow, LLD: of the Court of Appeal in In re Hall Dare's Contract—although the The epitaph reached the bench, and Mr. Longfellow, not long afterwards Master of the Rolls characterized section 70 as “ a very plain enactment” -to continue a line of criticiem upon the new Act, too often, in my your honour, there is this dis "Out with it, brother Longfellow," said humble opinion, hardly distinguishable from "mere hair-splitting, Judge Story, with a good-humoured smile. But it would not come. The although you are careful to explain that it is not that. What shall wel epitaph records the death of the distinction,
such last-mentioned day should become due monthly in advance, and be payCASES OF THE WEEK.
able at the place and on the day where and when the monthly meetings of
the society should, from time to time, be held, and the first payment of such SALE BY COURT-RESTRICTIVE COVENANT-QUALIFICATION.-In a case of of the society should first become entitled to enter into possession or receipt of
rent should become due on the day on which the trustees for the time being Pollock v. Rabbits, before the Court of Appeal, on the 21st inst., a question the rents, but all moneys received by them for rent should be accepted in or arose as to the mode in which a restrictive condition opon the sale of land towards satisfaction of the subscriptions, interest, fines, and other moneys then under the direction of the court was to be carried out in the conveyance to in arrear or payable under the rules ; provided that it should be lawful for the purchaser. One of the conditions of sale was as follows :-"The the mortgagees, on giving fourteen days' previous notice in writing, to enter on freehold lots are sold subject to the reservations and stipulations mentioned the property, and to determine the tenancy thus created. The deed was not in the particulare, so far as the same affect such lots respectively, and the registered under the Bills of Sale Act. In August, 1881, Knight was in respective conveyances of such lots shall contain proper reservations and default in his payments, and he continued in default for three months afterprovisions and covenants by the parobasers for the purpose of securing the wards. At the monthly meeting of the society in November, 1881, there was liabilities and rights under such reservations and stipulations, the form of due from him £633, and, on the 2nd of December, 1881, the trust?es, acting soch reservations, provisions, and covenants, in case of dispute, to be settled under the attornment clause, put in a distress for the sum of £664 14s., which by the judge.".. The porchaser of one of the lots sent to the vendor a drast was then due under the rules. On the same day a bankruptcy petition was conveyance which contained a covenant by the purobaser that he would presented against Knight, founded on an act of bankruptcy committed by him observe and perform the stipulations mentioned in a schedule (and which on the previous 26th of November, and on the 5th of December he was adcorresponded with those referred to in the conditions), but the covenant was judicated a bankrupt. The trustees of the building society put in other disqualified by the following proviso : “But this covenant is not to be held tresses subsequently for further soms which had become due from the bank. personally binding opon (the porcbaser] his heirs or assigns, except in rupt under the rules. The trustee in the bankruptcy applied to the court to respeot of breaches committed or continued during his or their sole or joint declare the attornment clause and the distresses levied under it void as against seisin of or title to the land in respeot of which such breaches shall have him, on the ground that the rent regerved was not the fair letting value of the been committed.". The vendor objected to this qualification, and insisted property, and that the clause was not intended bona fide to create the relation that he was entitled to an absolute and unqualified covenant. The matter of landlord and tenant, but was a mere device to secure a preference to the was referred to the judge in obambers, and Kay, J., held that the covenant society in the event of the bankruptcy of the mortgagor, and to evade the should be qualified by the following proviso :-“ Provided that when and bankruptcy law. There was evidence that, before the mortgage was given, so often as the said [purchaeer] or his heirs shall sell or dispose of the the property had been valued for the purpose of the mortgage at £12,000, and said lots, &c., or any part thereof
, to a purchaser or assign who shall have that the rent for the property ought to be estimated at seven per cent. on potice of the aforesaid covenants, and shall take from such purchaser or
that value. Other valuers said that the rent ought to be taken at ten per assign like covenants in the conveyance to him or them, then and in such cent. on the 212,000. On the other hand, there was evidence that at the time case the said [purchaser) or his beirs so conveying shall be freed from any of the application to the court the property would not let for more than $500 further liability in respect of a breach of the aforesaid covenants which
a year, and that it was assessed for the purpose of poor rate at a gross sball happen after such conveyance with regard to the land so conveyed." annual value of £288. Bacon, C.J., held that the attornment clause and the The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.) held that distresses levied under it were valid as against the trustee, and this decision the covenant ought to be an unqualified one. JESSEL, M.R., said that he was affirmed by the Court of Appeal (JESSEL, M.R., and Brett and Cotron, could see no ground whatever for inserting the proviso. The contract L.JJ.). JESSEL, M. R., said that, according to the doctrine of Ex parte Williams between the vendor and purobaser was contained in the condition of sale, (26 W. R. 274, L. R. 7 Ch. D. 138), if it was never intended by the parties and it came to this, that the purchaser was to covenant to perform the
to create the relation of landlord and tenant between the mortgages and stipulations mentioned in the particulars of sale. There was no bargain the mortgagor, but they only used words to that effect, there would be that his covenant should cease at any time. If bo sold the property be the court came to that conclusion was the absurdity of the rent re
In Exc parte Williams the evidence on which mast get an indemnity from his purchager. A proviso limiting his covenant would be contrary to the conditions of sale. BRETT, L.J., concorred.
served by the attorment clause as compared with the real value of the property, COTTON, L.J., said that the contract between the parties was that the and the court came to the conclusion that it was not a genuine rent, covenant of the purchaser should be the modo of enforcing the stipulations and that it was never intended
that it should be paid, but only that the mortin questiop, and that contract was entirely contrary to the proviso which gagee should be able to distrain for it in the event of the bankruptcy of the had been inserted. -SOLICITORS, Pollock & Co.; Armstrong & Lamb; Sut- value of the property ; in Ex parte Jackson (29 W. R. 253, L. R. 14 Ch. D.
mortgagor. In that case the rent reserved was seven times the real letting cliffe f Summers.
725) it was fifty-seven times as great. In the present case not only the value
of the property, but the peculiar nature of tho security must be considered. MORTGAGE-ATTORNMENT CLAUSE_VALIDITY-BANKRUPTCY OF MORTGA- The monthly instalment payable to the society was £71 17s. 6d. Of course, GOR-FRAUD ON BANKRUPTCY LAW-MORTGAGE TO BUILDING SOCIETY — if default were made in payment of the instalments, the amount of the monthly DEBT PAYABLE IN INSTALMENTS-ATTORNMENT AT MONTHLY RENT-BANK- rent would be increased by fines, and might be a great deal more than RUPTCY Act, 1869, s. 34-STATUTE OF Frauds, ss. 1, 2.-In a case of £71 178. 6d., but the ordinary payment would be £71 178. 6d. The valuaEx parte Voisey, before the Court of Appeal on the 20th inst., a question e roso
tions made for the purpose of the mortgage made the value of the property about as to the validity of an attornment clause in a mortgage to a building society, £12,000. The amount of the rent which could have been obtained then must the mortgagor having become a bankrupt. One Knight was a member of a be a matter of opinion. Some of the valuers said that the rent would have been buildiog society, holding 750 shares, in respect of which he, in August, 1875, seven per cent.,
others said ten per cent., on the value of the property. Taking received an advance of £7,500 from the society. By the rules of the society it as seven per cent., the rent would have been £840. On the other hand, there this sum was to be repaid, with interest at seven per cent. per annum, in
was evidence that it would now let for not more than £500 a year. But, in monthly instalments of £71 178. 6d. If default was made in payment of the order to judge of the bona fides of the parties to the contract, regard must be monthly instalments the member was liable to pay a fine at the rate of five had to the valuation which they had made at the time. Taking the annual per cent, per month on the total amount in arrear at each monthly meeting rent at £900, it would be a little more than twelve times the monthly instalOn the 3rd of August, 1875, Knight executed a mortgage to the trustees of ment of £71 178. 6. But the tenancy was not to begin till the mortgagor the society, to secure the payment of the instalments and fines which should had been in default
for three months. He might have been in default for a become due from him. The deed comprised land, fixed machinery and engines, part only of his instalments. It would not be fair to try the thing by the and also engines and machinery, stock-ic-trade, and effects of the nature of event which actually happened. The first payment under the tenancy might personal estate. The mortgage was made redeemable in case the mortgagor be a good deal more than £71 178. 6d., but the subsequent payments need not should duly make all the payments, and observe and perform all the regula. be more, because the society could distrain at once, and not allow the instal. tions provided by the rules of the society. The deed provided that, in case ments to fall into arrear. In substance, the rent reserved was one which a the mortgagor should at any time thereafter neglect for three monthly meet- tenant, on the one hand, might honestly agree to pay, and which a landlord, ings of the society to pay all or any of his subscriptions, interest, fines, and on the other hand, might honestly expect to receive. There beiog no evidence other moneys, or to observe and perform the regulations of the society, or in of any want of bona fides, his lordship thought there was no ground for saying the event of bis becoming bankrupt, or filing a liquidation petition, or making that the attornment clause was a mere device to enable the society to obtain any assignment for the general benefit of his creditors, the mortgagees
might a preference in the event of the bankruptcy of the mortgagor; but, on the conenter into possession or receipt of the rents of the mortgaged property, and, if trary, he thought it was intended that
, in case of default in making the the rents should be insufficient, in their judgment, to satisfy the purposes of monthly payments, the society should have the power of distraining, whether the deed, might sell the property, and apply the proceeds of sale in paying the mortgagor was bankrupt or not. BRETT, L.J., said that the contract was what should be due by the mortgagor. There was a further provision that, if not a fraud as between the parties ; it was not intended to defraud any known the mortgagees should at any time become entitled to enter into possession or individual. The only way in which it could be said to be not bona fide would receipt of the rents of the property, and the mortgagor should then or afterwards be if it was not intended to be acted on between the parties, except in the case be in occupation of the property, he should, during such occupation,
be tenant of the mortgagor's bankruptcy, if it was an attempt to evade the bankruptcy thereof from month to month to the mortgagees, at a monthly rent of such a sum law. The fraudulent intention, if it existed at all, must have existed at the as should be equal in amount to the moneys which ought to be paid monthly time when the contract was made. The question was whether the contract by the mortgagor from time to time for subscriptions, interest, fines, and for a tenancy was made for the purpose of beiug acted on between the parties, other moneys under the rules, and
that the tenancy should commence on the whether the mortgagor became bankrupt or not, or only if he became bankday up to which the mortgagor should have fully paid all and every part of rupt, whether the
parties had the bankruptoy of the mortgagor in their consuch subscriptions, interest, fines, and other moneys, and the rent for the templation, and intended, in that case, to evade the fair distribution of bis period intervening between the time of such commencement of the tenancy property in bankruptcy. That was the principle of law laid down in Ex and the day opon which the trustees should be entitled to enter into posses. parte Williams and Ex parte Jackson, and those cases served as guides to one sion or receipt of the rents of the property should be payable and paid on such state of facts
, but they did not exclude other states of facts. Those decisions last-mentioned day, and the monthly rent due upon and subsequently to showed that, in the absence of any countervailing circumstances, if the rent was
80 absurdly large in amount that it could be concluded that the parties could thought that the registrar could not have meant this, but that he could only never have intended that it should be paid as rent, or be distrained for as reut, bave meant that under the circumstances the creditor was entitled to the cops. you must infer that they did not intend this, bat tbat it was a fiction, and that His lordsbip did not see wby the creditor should not have a copy of that what they really intended was that oply in the event of the bankruptcy of the which he had bimself sworn.-SOLICITORS, H, Montagu ; E. Chalk. mortgagor should bis goods be seized. This did not exclude other ways of showing want of bona fides, as, for instance, if the rent reserved was moderate in amount, but it was proved that there was a secret arrangement COMPANY-WINDING UP-DIRECTOR-BREACH OF TRUST-MISFEARANCEthat it should not be demanded or distrained for except in the event of the LIABILITY-SET-OFF-COMPANIES ACT, 1862, ss. 101, 165.-In a case of bankruptcy of the mortgagor. The question was whether it was a real, honest In re The Anglo- French Co-operative Society, before the Court of Appeal on transaction between the parties, intended to be acted on whether there was a the 25th inst., the question arose whether, when an application is made in the bankruptcy or not, or whether they intended it to be acted on only for the winding op of a company for an order, ander section 165 of the Companies purpose of evading the bankruptcy law. In the present case, bis lordship Aot, 1862, that a direotor should repay to the liquidator moneys of the comthought there was nothing to lead to the inference that there was any device
pany which he has misapplied by way of breach of trust or misleasance, the to evade the bankruptcy law. Corton, L.J., said that, it being andoubted director is entitled to set of against the demand a debt
dae to him by the that a mortgagor and a mortgages might, enter into a stipulation company. Hall, V.C., hud refused to allow such a set-off, and the Court of for a tenancy, and the law giving certain rights to a landlord, the ques. Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.) affirmed the decision. tion w98 whether they really intended to create the relation of landlord JESSEL, M.R., said that set-off was a statutory right, and, if it had been and tenant, or whether, under the mask of certain words, they intended, intended to give a right of set-off in a case under the 165th section, wby without creating any tenancy, to give the mortgagee the rights of a landlord had not the section said so ? There was another reason why the dootrine whether, in fact, the transaction was a sham. In considering this question; should not be applied. By section 101 an indooent person was deprived of one of the circumstances to be taken into account was the amount of the
rent the right of set-off ; and what should be said, then, as to the right of an reserved. If the rent was so large that whenever any payment of it was made the relation of landlord and tenant would at once come to an end, because the that he was extremely sorry for the restricted interpretation which had
officer of the onmpany who had misapplied its money? Brett, L.J., said whole of the mortgage debt would be discharged, that would be strong been pat in Coventry and Dixon's case (28 W. R. 775, L. R. 14 Ch. D. 660) evidence that the rent nominally reserved was never intended to be a rept. In Ex parte Jackson the rent reserved was so large that there could be no
opon the 165th section, wbioh his lordsbip bad always considered the most doubt that the tenancy was merely nominal, and that the object was to get the
beneficial seotion in the Act, and most salutary for the purpose of obeoking advantage of the rights of a landlord in the event of bankruptcy without the scandals which existed in the getting, ap of companies.-Cotron, LJ., any real tenancy. His lordship could see nothing of this kind in the present conoarred.-SOLICITORS, Davidson & Morriss; John Holmes.
The rept was not one which wonld enable the mortgagees to obtain payment of the whole mortgage debt at once, and this circumstance distioguisbed the case from the previous ones, and led strongly to the conclusion PRACTICE-APPEAL TOT SET DOWN-ABANDONED MOTION_Costs-ORD. that the parties did not contemplate a mere sbam relation of landlord and 58, R. 7.-In a case of Tomlin v. Underhay, before the Court of Appeal on tenant, but that they contemplated that the tenant would pay the rent as the 26th inst., the question arose wbether an appellant was bound to pay long as the mortgage should last, in accordance with the provisions of the the costs of an abandoned motion under the following circumstances. On deed. The mortgagees could not, therefore, be deprived of the legal conse- the 19th of Jane the defendants served the plaintiff with a notice of appeal quences of the tenancy.
from an order of Hall, V.C., made on the 3rd of Jape. The notice named Another objection taken to the clause was, that there could not be a tenancy the 24th of Jane as the day for the hearing of the appeal, but the appeal because the rent reserved was fluctuating and uncertain in amount, but the was not set down before that day. On the 26b of Jude the defendants court held that this was not a valid objectiod. JESSEL, M. R., said that rents served the plaintiff with a substituted notice of appeal for the 30th of Jane of variable amount were very common in agricultural leases—rents, for instead of the 24th of June. The notice included a notice of appeal from instance, of a penal nature, for ploughing up pasture land, or for growing an order made by Hall, V.C., on the 9th of Jade, as well as from tbe order certain crops, such as flax. And in building leases in London and other large of the 3rd of June. With the substituted notice the defendants' solicitors towns the rent was often made to depend on various acts, to be done either by sent a letter to the plaintiff's solicitors, in which they said that they thought the landlord or by the tenant. It could not be said that there was any legal it would be more convenient that the appeals against the two orders should objection to a rent which would be variable by reason of acts done by the mort- be heard together, and therefore they served one notice of appeal against gagor. . BRETT, L.J., said that the rent was certain, if by calculation and the both orders and withdrew the first notice. In parsuance of the second happening of events it became certain. Here it becamo certain the moment notice, both the appeals were daly set down. The plaintiff then applied to the condition was fulfilled ; on the happening of the condition the rent fixed the Court of Appeal for an order that the defendants should pay the costs of itself, and, therefore, it was certain. A third objection taken was that the deed was not executed by the mort. before the day named in the notice, most ba treated as abandoned, and
the first notice, on the ground that the motion, not having been set down gagee, but the court overroled this also. JESSEL, M, R., said that tbe attornment, being by the tenant in possession to the legal owner, was good evidence Assurance Company (26 W. R. 151, L. R. 4 Ch. D. 305), must pay the costs
tbat the defendante, in accordance with the decision in In re National Funds of an agreement for a tenancy, and operated as an estoppel in pais, the Statute of Frauds, because it might last for more than three;yeare, against the first order was not abandoned, but that it was joined to another A fourth objection was that the agreement for a tenancy was void, under of it. The court (JESSEL,
M. R., and Brett and Cotton, L.JJ.) refused the
JESSEL, M. R., said that the respondent koew that the appeal and the agreement was not signed by the mortgagee. Therefore, only a tenancy at will was created, and that was put an end to by the bankroptcy, If briefs had been delivered to conneel they would be atilized on the hearing
appeal. He would lose potbing but the costs of receiving the first notice. and no distress could be levied after the bankruptoy. JESSEL, M.R., said that of the appeal.
The application ongbt not to have been made, and it most it was not a lease for three years, for it was uncertain when it would begin. be refused, with
costs. Brett and Cotton, L.JJ., concurred.-SOLICITORS, BRETT, L.J., said that section 2 of the statute applies only when the tenancy must of necessity last for more than three years, not when it may last for a
W. Tatham & Son; Fladgats, Smith, & Pladgate. less period.-SOLICITORS, Paterson, Snow, š Bloxam ; H. B. Priest.
ACTION RELATING TO CHARITY-CONSENT OF CHARITY COMMISSIONERSBANKRUPTCY-Right OF CREDITOR TO Copy of DEPOSITIONS—PRIVATE BUILDING REGISTERED AND USED AS PLACE OF MEETING FOR Religious RR. 9. 12. – In a case of Ex parte Pratt, before the Court of Appeal on the .k, and BrerT and Cotton, L.JJ.) reversed the decision of Kay, ding EXAMINATION-BANKRUPTCY Act, 1869, 8. 96-BANKRUPTCY RULES, 1870, WORSHIP
CHARITABLE TRUSTS Act, 1853 (16 & 17 Vict. c. 137), ss. 17, 62 bankroptcy to have an office copy of bis own depositions, taken at a private Glen v. Gregg (30 W. R. 633). The question was whether the consent of examination on behalf of the trustee, under section 96 of the Bankruptcy Act, the Charity Commissioners was necessary to the
action, wbich was brought 1869, for the purpose of obtaining evidence to prove that certain goods had to administer the trusts of a dood, by which a piece of land was convoyed to been delivered by the bankrupt io the creditor by way of fraudulent prefer trustees apon trust
that it should be used for the parpose of a congregation ence: The trustee, after the examination had been concluded, served the assembling and worshipping according to the principles of a certain creditor with notice of an application to the
court for an order declaring the religious body. Section 17 of the Act of 1863 provides that no sait relating transaction in question void against the trustee as being a fraudulent prefer to any charity, or the property thereof, shall be eatertained, except with the ence, and directing the creditor to deliver op the goods to the trustee or to pas authority of the Charity Commissioners. Bat seotion 62 provides that the of the application an affidavit made by himself
, but he gave no notice that he Darbam, or any college or ball in the first three of them, or to any cathedral intended to use the creditor's deposition. The creditor applied for an office copy
or collegiate charches, or to any building registered as a place of meeting of a transcript of the shorthand writer's notes of his deposition, which was on the for religions worship with the Registrar-General of Birtbe, Deatbe, and file of the proceedings in the bankruptcy. The trustee objected to the creditor's Marriager, and bona fide used as a place of meeting for roligious worsbio
; having a copy, but the registrar ordered that he should be supplied with a Kay, J., held, contrary to his own view, bat in accordance
with the view of copy at his own cost. Rule 9 provides that all proceedings of the court Lord Chelmsford in The Attorney-General v. Sidney Sussex College (15 W.R. shall remain of record in the court, so as to form a comple:e record of each 162), that the charities wbich are exempted from the operation of the Act matter, and they shall not be removed for any purpose, except
for the use of by section 62 are still within section 17, and consequently that the action the officers of the court or by special direction of the judge or registrar, bnt could not be maintained without the consent of the Charity Commissioners
. they may at all roesonable times be inspected by the trustee, the bankrupt, JESSEL, M.R., said it was clear that Lord Chelmsford bad not given and any creditor wbo has proved, or any person on their behalt." The Court deliberate decision in the case referred to, for it appeared from the report of Appeal (Je sel, 21. R., and BRETT and Corron, L.JI.) affirmed the order that the objection was not
preesed. The objection being to the jurisdiction of It was stated on the hearing of the appeal that the registrar had said that the the court, no consent of counsel conld have given
jurisdiction. Therefore creditor wes entitled to the copy as a matter of als june tight. SESSZE, 4. ., | the case could not be treated as a deliberate and considered decision of
Lord Chelmsford. Therefore the court was entitled now to look at the profess to understand why the limitation of six months was imposed, but the words of section 62, and his lordabip oould not imagine any words plainer court found it there and could not alter it. The appeal must be dismissed to exempt the obarities mentioned in it from the operation of any part of with costs. Brett, L.J., thought it was a clear case. COTTON, L.J., said it the Aot, including section 17. In this partioular case the exemption was also might or might not be right for the Legislature to interfere, but, in his opinion, given by seotion 9 of the Act 18 & 19 Vict. c. 81 (which provides that every the court would be acting contrary to the law if it were to allow the appeal. place of meeting for religious worship, cortified to the Registrar-General SOLICITORS, Pitman & Lane ; J. W. Sykes. and bond fide used as a place of religious worship, shall be wholly freed and exempted from the operation of the Charitable Trusts Act, 1853), which did not apply to tbe case before Lord Chelmsford, and which was not
LIMITED COMPANY-WINDING-UP brought to the attention of Kay, J. BRETT and COTTON, L.JJ., ooncurred.
BANKRUPTCY OF PETITIONER-COM-SOLICITORS, A. D. Smith & Wood; Young & Sons.
PANIES ACT, 1867 (30 & 31 Vict. c. 131), 8. 40.-In the case of In re The Wala Wynaad Indian Gold Mining Company, before Chitty, J., on the 20th inst., a petition by a contributory having been presented for the winding op of
the company, a preliminary objection was taken that the shares in respect of MORTGAGE-REDEMPTION ACTION-MORTGAGEE IN POSSESSION-EXPENDI. which the petitioner was a contributory bad not, within the provisions of the TURE ON PERMANENT IMPROVEMENTS—NOTICE TO MORTGAGOR.-In a case of Companies Act, 1867, s. 40, been held by him and registered in his name for Shepard v. Jones, before the Court of Appeal on the 21st inst., the question a period of at least six months during the eighteen months previously to the arose whether, on the redemption of a mortgage as against a mortgagee in commencement of the winding up. It appeared that the petitioner was registered possession, the mortgagee ought to be allowed moneys which he has expended a shareholder on the 18ch of May, 1881, and filed a pet tion for liquidation of in permanently improving the property, no notice of the expenditure having his affairs on the 26th of August, under which a trustee was appointed on been given to the mortgagor. The judgment of Lord Langdale in Sandon the 29th of September. On the 28th of October a deed of composition was v. Hooper (6 Beav. 246) was relied on as showing that it was essential executed, and on the 7th of January the shares were re-assigned by the trustee tbat potice of the expenditure should have been given to the to the petitioner, who presented the winding-up petition on the 28th of Febmortgagor. JESSEL, M.R., said that there were some words in the judgment ruary: Chitry, J., overruled the objection, saying that the word "held," as of Lord Langdale in that case which appeared to ba inconsistent with what used in section 40, had no technical meaning, and that the meaning of the Lord Lyndhurst said in the same case when it came before bim on appeal (14 section was that the name of the contributory should be on the register as the L. J. N. S. Ch. 120). But his lordsbip thought that Lord Langdale did not
holder of the shares during the period prescribed.-SOLICITORS, Michael really mean to say that notice was material. "His lordship thought that notice Abrahams & Co.; H. Montagu ; T. H. Evans ; Robbins & Cameron ; Beale to the mortgagor was not necessary if the expenditure was reasonable and g Co.; F. D. Thompson. produced a benefit to the estate. And, on the other hand, if the expenditure was unreasonable, and produced no benefit to the estate, he did not see wby the mortgagor should be charged with it merely because he had notice of it. STATUTE OF LIMITATIONS (3 & 4 Will. 4, c. 27), ss. 12, 34–WRONGPUL Notice might be material, if after it the mortgagor expressly agreed to the Possession-JOINT Tenancy-EXTINGUISHMENT OF Right. - In the case of expenditure, or tacitly assented to it
, because then the mortgagee need not Bolling v. Hobday, before Chitty, J.,, on the 17th inst., it appeared that a prove that it was reasonable. But, if the mortgagor simply did nothing,
testatrix who died in 1817 by her will devised real estate to trustees, their potice could not alter the rights of the parties. BRETT, L.J., said that, heirs, and assigas, in trast for her daughter for life, and after ber death to interpreting Lord Langdale's judgment with reference to the facts which were sell the same and divide the proceeds between M. A. Smith, S. Smith, before bim, he thought tbat he meant that notice was not material when the Thomas Smith, and John Smith, share and share alike. On the death of expenditure was reasonable, and for the lasting improvement of the property, the testatrix the tenant for
life took possession of the estate and but that it was material only when the expenditare was unreasonable, and occupied it until her death, which took place in 1857. On her death then for the purpose of showing acquiescence on the part of the mortgagor. Thomas and John entered and remained in possession until the death of John Cotton, L.J., coccurred. -SOLICITORS, Abbott, Jenkins, d. Co.; Pield, Roscoe, in 1874, when Thomas remained in sole possession until his death, which & Co.
occurred in 1880. The trustees never in any way acted, and the property was enjoyed by Tbomas and Jobo, and after John's death by Thomas, without
interruption and acknowledgment. Under these circumstances the real repre. REVITOR-DEATH OF DEFENDANT-RIGHT TO CONTINUE ACTION AGAINST
sentatives of Thomas claimed the whole estate, and those of John either oneEXECUTORS-ACTION FOR Nuisance-3 & 4 WILL. 4, c. 42, 8. 2-ORDER half or one-fourth. Chitty, J., said that it was clear that the estate of the 50.– In a case of Kirk v. Todd, before the Court of Appeal on the 21st inst.; tenant for life wbich occurred in 1857 (Burrows v. M' Creight, 1 J. & L. the qnestion arose whether an action in respect of a nuisance iojurious to property could be continued against the executors of the defendant who had died 290). On behalf of Jobn's representatives it was said that, as to the more than six months after the issue of the writ. Toe Act 3 & 4 Will. 4, c. possession of Jobo and Thomas, it was a possession by tenancy in common, 42, provider, by section 2, tbat "an action of trespass, or trespass on the case,
but it was clearly established that where a possession was acquired under as the case may be, may be maintained against the executors or administrators the Statute of Limitations by a possession origioally wrongfol, the estate of any person deceased for any wrong committed by him in his life time to thus acquired was a joint tenancy (Ward v. Ward, L. R. 6 Ch. 789). Thereanother io respect of his property, real or personal, 80 as such injury shall have fore, assumiog that John was
entitled to the benefit of the possession of been committed witbin six calendar months before such pʻrson's death, and so as
Thomas, yet Juhn being dead, Thomas would be entitled to the wbole. Then euch action shall be brought within six calendar months after such executors or
it was said that John could, at least, claim one-fourth part of the estate, for administrators sball have taken upon themselves the administration of the John and Thomas under the will were, at least, tenants in common of oneestate and effects of such person. The plaiotiffs were dyers. Their works fourth share eacb, and Jobn's possession should be a cribed to his lawful title, abutted on a stream. The defendant carried on business as a woolcomber, at
so that Thomas did not oust John nor did he acquire John's share under the a mill closely adjoining the same stream, but a little bigher up the stream Statute of Limitations, 8. 12. To this, in bis lordship's opinion, there than the plaintiffs' works. The plaintiffs alleged by their statement of claim were two answers. The first was that tbe trustees' right to enter was barred that it was essentiel to the proper carrying on of their business that they by the 34th section of the statute, which says that the right and title shall should bava a large and constant supply of pure water, and that they had be extinguished," or as Lord St. Leonard, says in Burrows v. M Creight, the been in the habit
for many years of drawing that supply from the stream. statute transferred the estate. Therefore the result was that the right and They alleged that the defendant bad lately been discharging into the stream title of the trustees, or, in other words, the legal estate in fee which they would & noxious fluid, thereby polluting the water, and rendering it unft for the have taken under the will, was extinguished, and with it the trusts by which the purposes of the plaintiffs' business, and the plaintiffs claimed an injunction estate was affected. This was a conclusive answer to the claim. Moreover, and damages. The action was commenced on the 7th of April, 1880. On Joho and Thomas were not tenants in common even under the will. They the 17th of January, 1881, the defendant delivered bis statement of defence, were not equitable tenants in common of an estate, but entitled simply to and on the 11th of June, 1881, he died. On the 14:b of September, 1881, his shares of its proceeds, and in that sense only bad they any equitable estate in will was proved by his executors. On the 3rd of November, 1881, the the land. Therefore it was wrong to ascribe their possession, wbich was, plaintiffs obtained the common order, giving them liberty to carry on the for all the purposes of the will, unlawful, to the supposed lawful title which further proceedings in the action against the executors as the representatives they had each in respect of one-fourth share of the proceeds of the sale. The of the desendant. The executors did not move to discharge this order, but representatives of Thomas were, therefore, entitled to the estate.-SOLICITORS, when the action came on for trial before Hall, V.C., the objection was taken Hughes & Co.; Doyle & Sons; Duncan, Warren, g Gardiner. that it could not be maintained against them. The Vice-Chancellor held that this was so, and on this ground be dismissed the action, with costs, as against the executors. The Coort of Appeal (JESSEL, M.R., and Brett and PRACTICE-EXAMINATION OF WITNESS DE BENE ESSE-Costs. In the Cotton, L.JJ.) affirmed this decision.
JESSEL, M.R., said lie could not help case of Vicary v. Stroud, before Chitty, J., on the 21st inst., a motivo was feeling that this was a very hard case, but the coort must not allow hard made for the examination of a witness de bene esse. The affidavit in support cases to make bad law. The action was brought for a simple tort. It did not stated that the witness was suffering from chronic infirmities, disabling her even appear that the defendant got any benefit by fouling the stream, he only from ever being able to leave her residence. The application was opposed, on injured the plaintiffs. As his lordship understood the role at common law it the ground that it did not come within any of the three cases meationed by was this : you could not sue executors for a tort committed by their testator Lord Eldon in Bellamy v. Jones (8 Ves. 31)—viz., that the witness pro. for which you could only recover unliquidated damages. That law had never posed to be examined should either be over seventy years of age or the only been altered except by the Act 3 & 4 Will. 4, c. 42, s. 2, which allowed the witness to a particular fact, or if upon the ground of health in a dangerous execators to be sued in certain cases, but with the limitation that the injary state. It was also said that the applicant must pay the costs in any event. must have been committed within six months before the death of the testator. Chiriy, J., sald that the practice had altered since the case cited, wbich was Therefore the statute did not apply to the present case, in which the injury eighty years old. The coinmon law practice was also to be considered now. sued for was committed more iban six months before the death of the testator, It was, moreover, much doubted whether it was a requisite that the witness and the Vice-Chancellor had no option but to dismiss the action, and his lord should be the only witness. The affidavit was not in quite the right form, but ship could not say that he was wrong as to the costs. His lordship did not the order would be made upon the applicant paying the costs of the applica.
tion in the first instance, such costs to be specially reserved.-SOLICITORS, R. allowance should be made "for the purpose of enabling the debtor to indentify Chapman; Pearpoint & Co.
himself with the several matters connected with the liquidation, and to give the creditors material assistance in the realization of the assets." The liabilities
were estimated at £80,000, with assets £17,000. WILL-CONSTRUCTION-DEVISE TO TRUSTEES-EXTENT OF ESTATE-DIREC
F. C. Willis, in support of the application. TION TO PAY DEBTS.-In a case of Marshall v. Gingell, before Kay, J.,
Mr. REGISTRAR PEPYS.-What power has the court to do what the receiver the 10th inst., the question arose whether trustees, to wbom real estate was devised by a testator, took an estate in fee simple, or whether their estate
and manager asks ? was limited to the life of the tenant for life. The testator, by his will,
Willis, -The receiver and manager has been appointed by the creditors, and
He may em made in 1838, direoted his debts to be paid. And he gave and devised to it is his duty to carry on the business until the first meeting; four persons specifio real estate, to hold the same to them, their heirs and ploy anyone to assist him in realizing the estate, and the debtor, who has assigne, upon the trusts and for the intents and purposes thereinafter given up his property to the applicant, states that he is without means. expressed-viz., on trust that the trustees should, during the minority of his A similar order was made by Mr. Registrar Hazlitt in Re Morlet. daughter D., receive the rents of the property and apply the same for her
Mr. REGISTRAR PEPys thought the application was a reasonable one under uge and benefit till she should attain twenty-one, and on her attaining the circumstances, and made an order for payment of the allowance of £5 per twenty-one to pay to, or permit and soffer her to receive, the rents during week to the debtor as from May 17. her life for her separate use, without power of anticipation. And from and
Solicitors for the applicant, Gregson & Co. after her death, upon trust for, and the testator thereby gave and devised tho property unto all and every the lawful ingne, children or child of the daughter, who should live to attain twenty-one, equally to be divided
SOLICITORS' CASES. between them, if more than one, as tenants in common, and to their respective heirs and assigns; and if there should be but one such
High COURT OF JUSTICE.- Queen's Bench DivisioN. child, then the whole to such only one upon attaining twenty-one,
(Sittings in Banc before Sir JAMES HANNEN, and FIELD, J.) his or ker heirs and assigns. And in case there shonld be no such child of the daughter D., or being such issue, child or children, all of them should
July 24.- In the Matter of a Solicitor. die under twenty-one, then upon trust, and the testator thereby gave and Horace Brown moved ex parte in this case for a rule nisi calling upon the devised the property unto a son and another daughter, equally to be divided solicitor in question to show cause why he should not be ordered to between them as tenants in common, and to their heirs and assigns. The answer the matters of an affidavit, or, in the alternative, be struck off the rolls. testator then made some other specific devises and bequests, and then he The application was made on behalf of Mr. George Hampden Whalley, M.P. gave and bequeathed all the rest, residue, and remainder of bis estate and who, at the beginning of the present year, wishing to obtain a loan, was effects (subject to and charged and chargeable with the payment of his debts) brought into communication with Mr. Snelling, money-lender. In unto a son, to hold to him, bis heirs, executors, and administrators, absolutely February last Mr. Snelling went with him to the office of the solicitor in And the testator appointed the same four persons whom he had previously question. There it was arranged that Snelling should advance a sum of £400 named as trustees to be the executors of bis will. He died in 1838. In 1857 to Mr. Wballey, who was to pay £600 for it at the end of three months. As the daughter D. married. She had three children, and she died in 1864, a matter of fact, Mr. Whalley received but $10 out of the whole £400, the leaving the three children surviving, all of them being then infants. The solicitor informing him that he should pay off a few of his (Mr. action was commenced in 1882 by the youngest of the three children, who Whalley's) small but most pressing debts with the balance after he bad binWis still an infant, by a next friend, against the trustees and the other two self taken £200. On February 18 Mr. Whalley, fearing that bankruptcy children, who had attained twenty-one. The plaictiff claimed a declaration proceedings might be instituted against him, had again called upon the solicithat each of the children who were defendants was absolutely entitled to one-tor in question and told him that he would have no difficulty io paging 205. third of the devised property, and that the plaintiff was entitled contingently in the pound, as the total amount of his unsecured debts was only between on bis attaining twenty-one to the other one third. The trustees demurred £6,000 and £7,000, and he bad an income of $7,000 a year from land. He also to the statement of claim, on the ground thet the gifts in the will to the told the solicitor in question that he was anxious at once to raise what money children of the daughter D. were contingent remainders, which failed by was necessary to free bimself entirely from debt by giving a mortgage on bis reason of her having died before any of her children attained twenty-one. estate. The solicitor, as he swore in his affidavit, bad assured him that there The question was whether the trustees, under the devise to them, took the could be no reason why proceedings in bankruptcy commenced against him legal estate only for the life of D., or whether they took the legal estate in should not be put an end to, and that all that would be necessary would be fee, which would then support the contingent remainders. KAY, J., held, to call a private meeting of bis creditors, when it would be easy to come to a mainly on the authority of Creaton v. Creaton (3 S. & G. 386), that there fair settlement with them. There would be no publicity, and the whole matter leing a direction in the first instance that
the testator's debts should
be paid, could
be arranged in a week. On February 21, 1882, Mr. Whalley again and ihe devise being to the persons who were afterwards named executors,
went to the office of the solicitor, who told him to sign certain papers and the trustees took the legal estate in fee, and, consequently, the doctrine of swear an affidavit he had prepared for him. This Mr. Whalley, who was led Festing v. Allen (12 M. & W. 279) did not apply, and the contingent to attach no sort of importance to the documents, did, and, as he soon after remainders to the children had not failed. His lordship said that the only wards became aware, they were, in fact, his petition for liquidation and the distinction between the present case and Creaton v. Creaton was in the necessary affidavit. 'According to the affidavit of Mr. Whalley, he had no residuary gift, which was subject to the payment of the testator's debts, but sooner so signed the petition, &c., than the solicitor in question had taken out that was quite consistent with an intention to charge with the payment of of one of his drawers six or seven slips of paper with bill stamps impressed debts, not only the residue, but also the estate specifically devised. On any on them, and had told Mr. Whalley to sign them. The stamps did not other construction the direction at the beginning of the will that the testator's escape the notice of the latter
, and strangely enough, as he swore, though debts should be paid would be useless and inoperative.-SOLICITORS, Thos. he received no money from the solicitor in question, he had not hesitated at Baddeley & Sons.
affidavit it was further stated that he had subsequently ascertained that the slips of paper so signed by him in blank had been filled in by the solicitor in
question for a total sum of over £6,000, and that the stamps were all antedated, CASES BEFORE THE BANKRUPTCY REGISTRARS. so that it might appear that the bills had been accepted by him (Mr. Whalley) (Before Mr. REGISTRAR Pepys.)
prior to the date of his filing his petition in liquidatiou. July 18.-Ec parte Nichols, Re Fraser.
FIELD, J., asked if Mr. Whalley swore by his atidavit that he had really
not known what he had been doing when so signing these bills in blank. Where a first meeting under a liquidation petition had been postponed for several months in order that creditors who were resident abroad might Mr. Whalley, it was nevertheless the fact, and that all these acceptances were
Browne said that, strange as it might seem in a person in the position of receive notice of the
proceedings, the court, upon the application of the in the liquidation proceedings actually proved upon just as if they had propres receiver
and manager, granted an allowance to one of the debtors for his sented bond fide claims on bis estate."'le was, indeed, but little more than a support out of the estate, there being evidence that he had rendered month ago that he had consulted his present solicitor and become fully swara material assistance in reference to the property.
of the effect of what he had been induced to do by the solicitor against whom This was an application on behalf of Mr. C. L. Nichols, the receiver and the
. Wheneg halda istinctly challenged the solicitor against whom the present
the present application was made. On June 23 the solicitor now acting for manager appointed
under a petition for liquidation presented by Messrs. G. J. application was made to offer some explanation of his conduct and to show homes Fraser and L. J. Fraser , merchants, of London and Signapore, for an order to be he was prepared to meet the charges made against
him by Mr. Whollowing
fact had £5 out of the The petition for liquidation was tiled on May 17, and on the same day an England. Further than that he had taken no notice of the challenge to eat
leave account of the time that must necessarily elapse in obtaining the list of credi- 1 tb facto na dodel 2 air son ment three days after, calling bis attention to the tors from Singapore, and in giving the usual notices. Gich Fraser was the only partner in the firm residing in England, and Mr: fact that no answer to the first had been received from him. Nichols stated tbat he bad rendered very material assistance in matters con
The Court granted the rule nisi as prayed for.-Times. nected with the estate. An application had been made by Mr. G. J. Fraser for an allowance for his maintenance, and, having regard to the length of time which would elapse before the first meeting, and to the fact that he was the approval of the court. mi. Nichols a pitated that he was out opinion tit. Q.C.
, started that the Master of the Relig had given it at his opinion that this
In Committee of the House of Common on the Partnership Bill, Mr. Daver: would be to the interest of the general body of the creditors that the proposedd was a thorougbly bad Bill.