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FELO DE SE.
REVIEWS. 45 & 46 Vict. c. 19.-AN ACT TO AMEND THE LAW RELATING TO THE INTERMENT OF ANY PERSON FOUND FELO DE SE.
WILSON'S JUDICATURE ACTS. [3rd July, 1882.]
Wilson's SUPREME COURT OF JUDICATURE Acts, APPELLATB JURISDICTION The preamble to this Act recites that a further alteration of the Act, 1876, RULES OF COURT AND FORMS, WITH OTHER ACTS, ORDERS, law of its subject matter is expedient; and a reference to 9 Geo. 4, RULES, AND REGULATIONS RELATING TO THE SUPREME COURT. With C. 52, which is repealed but re-enacted with omissions and additions Practical Notes. THIRD Edition. By M. D. CHALMERS, Barrister-atby the Act, will show that considerable amendments were effected
Law, assisted by Herbert LUSH-Wilson, Barrister-at-Law. Stevens & long ago. The old law was that the felo de se was buried in a high
Sons. way with a stake driven through his body. This barbarity was The addition of 100 pages or so to this edition of Wilson has not abolished by, 9 Geo. 4, c. 52, but that Act still prescribed a deprived the book of the handiness which has always been one of its private burial between nine and twelve at night within twenty-growing size.' So far as this is the result of the ever-increasing mass of
characteristics, but we cannot help looking with apprehension on its four hours of the verdict of the coroner's jury. The present Act parliamentary and judicial legislation and decision, it is, of course, assimilates the mode of burial, so far as the civil law is concerned, unavoidable, but we regret to discern some tendency in the earlier part to the ordinary mode of burial " in the churchyard or other of the work to swelling out the notes with unnecessary matter. For burial ground of the parish or place in which the remains of instance, in the last edition Mr. Wilson appended to section 25, sub-section the felo de se might, by the laws or custom of England, be (6), a note of a few lines, stating that * this sub-section does not make interred if the verdict of felo de se had not been found." The anything an assignment which was not an assignment before, either at ecclesiastical law is dealt with by sections 3 and 4, which pro- about a page in length, commencing with a statement of the rule before
law or in equity,” referring to Schroeder's case. We have now a note of vide for the interment “in any of the ways prescribed or
the Judicature Act as to the assignment of a chose in action; then proauthorized by the Burial Laws Amendment Act, 1880,” but also ceeding to notice the provisions of the Policies of Assurance Act, 1867, direct that,“ save as aforesaid, nothing herein contained shall the Policies of Marine Insurance Act, 1868, and the provisions of authorize the performing of any of the rites of Christian burial.” section 27 of the Conveyancing Act. All this information upon the Turning to the Burial Act of 1880, we find that section 13 of general subject of the assignment of choses in action is, we venture to that Act relieves the clergy of the Church of England from any this general subject, he is not likely to seek it in a book on the Judicature
suggest, nearly useless ; for if the practitioner wants information as to ecclesiastical penalties for using, “ in any case where the office for the burial of the dead, according to the rites of the Church Acts, and the student is certain to prefer the information given in works
specially intended for him. In the first edition of a commentary on a of England, may not be used,” such service out of the Prayer new statute some short reference to the previous state of the law is Book or Bible as may be prescribed or approved of by the allowable, but the less there is of it in subsequent editions the better. Ordinary." Amongst the cases where the regular Burial Service Even some of Mr. Wilson's admirable notes on the statute of 1873 might, may not be used, the rubric prefixed to that service designates the we think, now be abridged in this respect with advantage. We should also case of persons who have laid violent hands on themselves," like to see removed from the next edition all notes or portions of notes and the section seems to have reference to this rubric. In cases
which are mere paraphrases of legislative provisions. Since the Conwhere the ordinary has prescribed no form, it seems that no ser
veyancing Act there has come into vogue a style of note which is
wearisome and irritating in the highest degree. If a section were, bay, vice can be performed by a clergyman of the Church of England. to abolish acknowledgments by married women, a learned commentator If the felo de se should have died out of communion with the would be certain to observe in his note that “by this section provision is Church, however, the burial may take place, by the effect of made for the abolition of acknowledgments by married women.
Mr. section 3 of the present Act and section 6 of the Burial Act Chalmers' notes to the Act are not altogether free from this kind of of 1880, either without any religious service, or with such remark, but it is happily very infrequent. Christian and orderly religious service (performed by a Noncon
Having said so much in the way of criticism, we may now bear testi. forming minister) as the person having charge of the burial shall mony to the merits of the present edition. The notes to the rules are think fit.
very well edited. We have often had occasion to remark that if a case is referred to in a book of practice, the reader should always be briefly informed of the effect of the decision, and should not be told to
“ see Jones V. Smith." This rule has been well observed by Mr. POOR RATES.
Chalmers in his notes to the rules. Usually the exact point decided is 45 & 46 Vict. c. 20.-AN ACT TO AMEND THE POOR RATE stated, and where this is not done the reader is nearly always told the
general subject to which the case relates. We have missed no case for ASSESSMENT AND COLLECTION Act, 1869. [3rd July, 1882]. which we bave looked, and have found the effect of the decisions stated
This Act is short but important. It contains two enacting with accuracy and terseness. The rules, forms, and orders issued since sections only, one getting rid of the effect of Werburgh Overseers v.
the last edition (including the recent Practice Masters' Rules) are given Hutchinson (L. R. 5. Ex. D. 19) and Hare v. Putney Overseers (L: in full. The index seems to have been entirely re-modelled, and is R. 70. B. D. 223), in which
it was held that an outgoing occupier very convenient and well-arranged. was liable for the whole of a rate, although he might not be immediately succeeded in his occupation by an incomer; and the other
BANKERS. getting rid of the effect of Reg v. Dyott (L. R. 9 Q. B. D. 47), in Grant's TREATISE ON THE LAW RELATING TO BANKERS. FOURTH EDITION. which it was held that there could be no publication of a rate By CLAUDE C. M. PLUMPTRE, Barrister-at-Law. Butterworths. within the meaning of 17 Geo. 2, c. 3, as amended by 7 Will. 4
The first edition of this work was published in 1856, being, as the and i Vict. c. 45, and therefore no rate at all by virtue of author stuted in his preface, " the result of an endeavour to compile the the first-named statute, in a parish which possessed neither law relating to the business of banking as gathered from statutes and church nor chapel. The title of the statute shows that the second the decisions at common law, in equity, and in bankruptcy," in which enactment was added while the Bill was passing through Parlia-ondeavour the author conceived it to be his first duty to aim at ment. The meaning of it is simply to reverse the case law as
" practical utility," and gave certain "rules, suggestions, and cautions laid down in the decisions we have referred to. With regard to for the conduct of bankers, as much as possible expressed in the the publication of the rate, we may repeat what we said on a third editions were the work of Mr. R. A. Fisher, and the third edition former occasion, that publication in a Nonconformist chapel was issued in 1873. In the nine years which have passed since that date will not be sufficient. Chapel” in an Act of Parliament many cases of great importance have been decided, and the Crossed
a chapel of ease or other chapel in connection with Cheques Act and two Bankers' Books Evidence Acts have been passed. the Church of England. The Legislature has, in some
The present editor has " endeavoured to follow as nearly as possible the e.g., for the purposes of the parliamentary registration-recog- arrangement adopted in the previous editions," with necessary altera. nized the desirability of publication of notices upon the doors of tions ; being obliged to curtail of merely refer to many cases Dissenting chapels, but has, in such cases, employed such unam- writing the chapter on bankruptcy, and adding a new chapter on bills of biguous expressions as “every chapel, including places of public sale, together with the Act of 1878 in extenso iu the appendix; which new worship which do not belong to the Established Church” (6 Vict. chapter perhaps might have been dispensed with as not sufficiently c. 18, s. 23).
cognate to the subject-matter of the book.
We may state at the outset that only in one instance have we failed to discover any of the cases for which we have searched, but
CORRESPONDENCE. the general mode of execution is best tested by seeing how the particular cases and statutes have been dealt with. The Crossed Cheques Act is very well treated, but we cannot speak so well of the Evidence Act.
SURVEYORS OF HIGHWAYS-LIABILITY TO REPAIR
FENCES. The heading " Books” finds no place in the index; Harding v. Williams (L. R. 14 Ch. D. 197)—the correctness of which may be gravely doubted
[To the Editor of the Solicitors' Journal.] -is curtly dispatched in a short note, and the whole Act has only four Sir, I have had occasion to consult text-books latterly upon the ques. lines given to it in the text. Next, we will take Hopkinson v. Foster tion of the liability of a surveyor of highways for the repair of fences on (L. R. 19 Eq. 74), in which it was held, before the Judicature Act, that a the side of a highway, and have been much struck with the absence of cheque is not an equitable assignment of the drawer's balance. Mr. either statutory or case authority on the subject. So far as my researches Plumptre, though he cites Schroeder v. Central Bank of London (24 extend, I have not been able to discover any distinct case bearing upon W. R. 710), in which it was held that the Judicature Acts did not alter the liability alluded to. the law, does not, we think, sufficiently indicate the effect of that A surveyor of highways appears to be in considerable difficulty, for decision, and unfortunately adds, after stating the effect of Hopkinson v. however williug he may be to accept tho liability, he is subject to his Foster, that, "now, by section 25 of the Judicature Act, all accounts being audited and surcharged in respect of payments improperly debts are assignable." Moreover, the reader would probably like to know made. At the present time, I know a surveyor of highways who, whether the effect of Hopkinson v. Foster really is that, if a customer positively not being able to satisfy himself upon the point of liability to having £1,000 balance draws a cheque for £1,001, the banker is justified repair fences, has allowed certain fences to remain in a bad state of in dishonouring the cheque. We find nothing about this under the repair, in order that someone may take proceedings against him, so that head Balance" in the index. Then, 80 important a as his liability may be ascertained. Suffell v. Bank of England (30 W. R. 48), decided on July 4, 1881, I suppose that the bighways have been made, originally, through someought to have been fully dealt with in a book bearing 1882 on the title- one's property, and it would, on the construction of such roads, be neces. page. It is included, though too briefly, in the addenda. On the whole, sary for fences to be made on each side of the roads to protect the we regret that we cannot bestow any very high praise on this edition. adjoining property, but who would make these feuces originally, and wha
continue to repair then, seems to be a question of some doubt. LIABILITY OF EMPLOYERS.
I think I read, within the last month, of a case deciding the question
of liability of surveyors of highways to repair milestones, whereiu : A SUMMARY OF THE LAW OF THE LIABILITY OF EMPLOYERS FOR PERSONAL recent Act of Parliament was quoted having reference to milestones and
Injuries. By W. Howland Roberts and George Henry WALLACB. also to fences. Can any reader remind me of this case, and give me the Barristers-at-Law. Reeves & Turner.
number and reference to the statute, and any other information on the We can cordially recommend this little treatise to all persons interested subject of a surveyor of highways' liability to repair fences adjoining in its subject. The very latest cases will be found, and the important highways, or any reference to cases and text-books ?
ERGO. case of Griffiths y. Earl Dudley, at the date of publication unreported, [The Act referred to is, probably, the Act of the present session, 45 & is given at length. There is also a valuable note on “Insurers under the 46 Vict. c. 27, as to fencing dangerous places near highways: see ante, Act of 1880." "One fault we have to find, however, is that the authors p. 609.-Ed. S. J.] are much too diffuse. Thus, they anticipated the result of Lord Dudley's case correctly indeed, but at such length that it might be supposed they were doubtful of their own conclusions. Another fault is, that in
“LAND OF ANY TENURE." citing Couch v. Steel (3 E. & B. 402), a well-known decision on the
[T'o the Editor of the Solicitors' Journal.] repealed 7 & 8 Vict. c. 112, they omit to say whether or not the decision
Sir,— With reference to the doubt expressed by you in the article on applies to the corresponding section of the Merchant Shipping Act, section 18 of the Conveyancing and Law of Property Act, 1881, con: 1854, or even to mention whether that Act contains a corresponding tained in your issue of July 15, as to whether the expression land of section at all,
any tenure" in the interpretation clause of that Act would include a
leasehold interest, allow me to remind you that the same expression, MEW'S DIGEST.
“land of any tenure," occurs in the 23rd section of the Bankruptcy Act,
1869, the section relating to the disclaimer of onerous property. In that A Digest Of The Reported DECISIONS OF ALL THE COURTS, INCLUDING SELECTION FROM THE IRISH (BEING A CONTINUATION of Fisher's Digest), leasehold interests in land. It has even been 'beld recently that a dis.
case it is, of course, beyond doubt that these words apply to all sorts of &c., DURING THE YEAR 1881. By John Mews, Barrister-at-Law. H. claimer under this section will operate as a surrender of personal chattels Sweet.
leased with land to the bankrupt. (See E.c parte Allen, In re Fussell, 30 This is certainly in design one of the most complete digests in W. R. 601, L. R. 20 Ch. D. 341.)
A. J. SPENCER. existence. It not only contains all the English cases of the year (with Lincolu's-inn, Aug. 1. references to all the series of reports), and the leading lựish cases
[See remarks elsewhere.-ED. S. J.] arranged under general headings with numerous sub.heads, but also a short statement of the effect of the statutes of the year and the orders and rules of court. The Digest is not confined to the head-notes of cases, for numerous dicta are collected under various headings. The Digest is followed by elaborate tables of cases in the Consolidated Digest for 1870. 80, affirmed, reversed, or varied by the decisions reported in 1881 ; cases
CASES OF THE WEEK. in the Digest for 1880 affirmed, reversed, or varied ; cases followed and approved, and, lastly, very valuable lists of “cases not followed, over. COMPANY-WINDING UP- -DIRECTOR-BREACH OF Teust-Mr8FBASANCE ruled, and questioned,” cases explained and commented on," and " -PAYMENT OF DIVIDENDS OUT OF CAPITAL-COMPANIES ACT, 1862, s. 165. distinguished.” With regard to the execution of the work, the general --In a case of In re The Exchange Banking Company, before the Court of headings are sufficient in number and usually well selected. The
reader Appeal on the 26th ult., the question arose whether, in the winding ap of a is tolerably sure to find his way very speedily to any class of cases he company, the directors could, under section 165 of the Companies Act, 1862, may wish to examine. The sub-heads to the more important heads do
be compelled to pay to the liquidator moneys which they had improperly paid not appear to have been 'always selected with equal judgment, or
by way of dividend to the shareholders out of the capital of the company, no arranged very carefully. Thus, to take the heading “Landlord and of trust or misfeasance in so doing. Bacon, V.C, held that the directors were
profits having been made, on the ground that they had been guilty of a breach Tenant," the sub-heads are (1) creation of tenancy, which is again subjointly liable to pay the money, in question, and the Court of Appen! divided into agreements for leases, leases, and implied tenancies ; followed JESSEL, M.R., and Brett and Corton, L.JJ) affirmed bis decision, except by (2) covenants ; ' (3) 'rent; (4) rights
and liabilities of landlord and that they beid that the directors were severally as well as jointly liable. It was tenant; and (5) termination of tenancy. The second and third heads should contended that In re The National Funds Assurance Company (27 W. R. 302, have been 'sub-heads to the fourth head. Similarly, under the head L. R. 10 Ch. D. 118) would bave been differently decided if it had been “Trust and Trustee" the case placed under the sub-head “ Relation of decided after the decision of the Court of Appeal in Coventry and Diron's case Co trustees” should clearly have come under the sub-lead “ Liability (28 W. R. 775, L. R. 14 Ch. D. 660); that section 165 created no new of Trustees.". The statement of the cases is generally very satisfactory right against directors, but was intended only to provide a summary mode of The cross-references are numerous, and usually accurately express the enforcing lan old right, and it was said that in an action by the liquidator, substance of the case referred to, though to this we must make an
as repre.enting the company, against the directors, it would have been a good exception in the case of Oceanic Steam Navigation Company v. Suther- in the breach of trust. At any rate, only the dividends received by the direc
answer that all the shareholders, by receiving the dividends, had acquiesced burry (column 437), which we should not recognize by the description, tors themselves could be recovered.' Jessel, M.R., said the question was • Trust created by parting with leaseholds of deceased by executor whether the Vice-Chancellor had authority to make the order. Toe directors or administrator."' f'he several tables of cases followed, overruled, and bat for several years before the winding up of the company, been in the babit «xplained represent a large amount of labour, and although we have of providing false halan-e-sheets. They had entered a number of deb's
, applied various tests to them we have not found them deficient. which they knew to be bad, among the assets of the company as good debts,
and had tbus made it appear to the sbareholders that there had been a profit, | firmation unless the facts were known, and the allegation was that the when they knew there had been nope, and had induced the shareholders to balance-sheets were fraudulent, and the shareholders did not receive any in, declare dividends out of these assumed profits, and had paid those dividends formation as to the real state of the case. Then it was said that the corpora. to the shareholders. The liqnidator, after the winding up, applied for an tion could not sue the directors, because it was the aggregate of the share. order that the directors should pay to bim the sums thus paid away as divi. holders who had received the money. But the corporation was something dends, and the Vice-Chancellor, following In re The National Funds Assurance very different from the iudividual shareholders, or the aggregate of the shareCompany, had made the order. The ground of the appeal was that that ca se holders. The case would be very different if the money was now wanted for was decided before the decision of the Court of Appeal in Coventry and Dixon's the purpose of dividing it among the shareholders, but it was wanted to pay case, and that that case had decided (as his lordship thought it did decide) the debts of the company.--SOLICITORS, Goldring & Mitchell ; Clarke, tood. tbat, under section 165 of the Companies Act, 1862, directors could not be cock, & Ryland. made liable for anything for which they would not have been liable independ. ently of the section, but that that section only provided a summary mode of RESTRICTIVE COVENANT-USE OF PROPRIETARY CHAPEL_"REGULAR" enforcing the liability. It did not, however, decide that directors could not CLERGYMAN.-In a case of The Governors of the Foundling Hospital be made liable for anything for which they would not have been liable inde- Dunbar, before the Court of Appeal on the 28th ult., the decision of Chitty, pendently of the Act of 1862. If the decision in In re The National Funds J. (noted ante, p. 531), was afirined. The question was as to the meaning Assurance Company had been founded only on some new equity arising under of the words " regular clergyman of the Church of England" in a covenant section 165 it could not now stand. But it appeared to his lordship that it by the lessee of a proprietary chapel restricting the use of the building. The was founded on an equity quite independent of that section. The case might appeal was from an order restraining the defendant from officiating or perbe put shortly thus :-A company formed under the Act of 1862, with limited forming Divine service in the chapel in question. The plaintiffs were the liability, declared by its memorandum of association that its capital of a cer. lessors of the chapel, the defendant was an assignee of the lease. The lease, tain amount was to be appropriated to the carrying on of its business. It which was made in 1802, for a term of ninety-nine years, contained a cove. could not alter the memorandum by diminisbing the amount of the capital, nant that the lessee " should not at any time during the term permit any and, looking at the machinery supplied by the
subsequent Act of 1867 for clergyman or person to officiate in the chapel or perform public Divine service the reduction of the capital of a company with the sanction of the court, therein but such as should be a regular clergyman of the Church of England." it was plainly the intention of the Legislature that the capital of a company In January, 1880, the defendant wrote to the Bishop of London, resigning the was not to be returned to the shareholders without the sanction of the court. licence granted to him in 1877, and this resignation bad been accepted, and The capital could not be returned to the shareholders at all so long as the he had, in fact, teen prohibited by the bishop from performing service in the company was carrying ou business. It followed that no sanction to such a diocese. The vicar of the parish, in answer to a question whether the return of capital, given by a general meeting of the shareholders, was of any defendant had asked his leave to officiate in the parish, bad written that he validity at all. It being beyond the powers of the company, the sanction of bad not done so, and that such leave would have been resused if he had asked a general meeting could not make it witbin its powers. Therefore, for it ; but, on the other hand, the defendant asserted that he obtained the
such to be done. And there was another reason why it could not be done. annulled. Shortly révocation of his licence the defendant registered There was either an implied contract with the creditors, or a representa- the chapel as a place of meeting for religious worship, but the Registrartion made to them, upon wbich they acted, and on the faith of General afterwards cancelled the registration, having received a report that this implied contract representation they gave credit to the
the chapel had ceased to be used for religious worship. Chitty, J., was of company. There was no other debtor to them ; the impalpable corporation opinion that the word "regular", was used as a qualification of the word had no property but its capital. The creditor trusted 10 the capital, or to the person," and said that, as he understood the law, a clergyman of the Church company, on the faith of the implied contraot or representation as to the amount of England must be duly ordained and also licensed by the bishop before be of the capital, it did not matter which it was called. And the creditor bad was at liberty to perform Divine service or to preach. That was the ecclesi. the right to compel the corporation to keep its capital, and not to return it to astical law, and the law of the land. The defendant was not licensed, and, the shareholders, and had a remedy against the directors if they misapplied in fact, had been prohibited, and there was, therefore, in his case an absence the capital in that way, though possibly that remedy might not be available of some of the legally requisite qualifications. It was urged on the appeal without a judgment. It seemed to follow that directors who had improperly that as the defendant had been duly ordained by a bishop of the Anglican paid away assets of the company in that way were liable to repay what they Church (ibe' Bishop of Ceylon), there was no sense in which it could be said had so paid, and it was immaterial whether tbe shareholders could compel that he was not a lar" clergyman of the Church of England. The them to do so if there was no winding up. Were the directors the less liable mere fact that he had himself resigned his licence, or even that the licence because the liquidator represented, not only the whole company, but also the had been revoked by the bishop, could not undo his orders.' The word creditors ? In an ordinary case-i.e., when the shareholders had acted on regular," so far as it was not surplasage, merely meant "duly constituted," the representation of the directors, the liquidator, as representing the company, and if it had been intended by the lessor that this chapel should only be eould com pel the directors to repay. It was quite possible that a com. serred by “licensed” clergymen, it would have been so expressed in the pady wight have been ruined by a return of capital improperly made in con. lease. Neither the bishop por the vicar had taken any proceedings to restrain sequence of the false representations of the directors, and it might well happen the defendant from officiating in this chapel. JESSEL, M.R., said that what tbat tbe sbareholders as such might bave a right to complain. It was not
was the meaning of the draftsman and what was the meaning of the lessor necessary to refer to previous decisions to show the principles on wbich direc. and lessee when they signed that lease be did not know, nor was he concerned tors were liable in such cases, but his lordship thought the true view was that to inquire. All he had to find out, if he could, was what was the meaning of an implied contract with the creditors, and, if so, Evang v. Corentry (8 of the expression used. The expression "regular clergyman" was a new D. M. & G. 835) was in point. His lordship thought the Vice-Chancellor's expression, and one be never saw before ; and, as far as he could find out, order was right, except that the directors should be made jointly and severally nobody ever saw it before, for his lordship had looked at a great many, books liable, and not merely jointly. BRETT, L.J., did not doubt that the payment on the subject, and the expression was not to be found in any of them. The of the dividends out of capital was a breach of trust. It was said that the first difficulty in the appellant's way was that Chitty, J., bad put a rational shareholders, by accepting the dividends, had acquiesced in or ratified the pay. meaning on the word "regular." He had held that "regular" meant a ment. But their assent was obtained by means of untrue accounts shown to person who could officiate in that place without being guilty of irregularity, or them, which they did not know to be untrue, and there could be no ratification could properly officiate. That was an intelligible meaning, and it gave effect to in that way. Even if they had known the facts, bis lordship thought that the the word. The appellant gave no effect to it, and could not suggest any other shareholders acting as such could not ratify the payments. If they cculd do meaning. Therefore, if it was to have any meaning at all, that was the 80, the liquidator could still complain as the company itself could have done, meaning. Wbat the appellant wanted the court to say was that it was mere for the aggregate shareholders were not the corporation. The individua surplusage, and had no meaning at all. That was a very difficult task, ghareholders might change from time to time, and if the shareholders remained because being a word put in, not as a common form but upon a subject the game, still the company could sue the directors, who were trustees for the quite extraordinary and new, it must be assumed it was to have some mead con pany, and not for any individual members of it. His lordship thought ing; and, no other meaning being suggested, and that being a rational mean. that the liquidator represented the company for the purpose of obtaining any ing, he thought it ought to prevail. The facts were very strong in favour of thing to which the company was entitled, and also in regard to its duty to that view. No one had a right to perform Divine service in this chapel, bow: its creditors. It was his duty to do that wbich the company ought to do to obtain ever regularly ordained as a clergyman of the Church of England, without the return of assets which ought to be applied in paying the creditors. having obtained two things-the licence of the tiehop, and the consent, The case was clearly within section 165, not on the ground that there had which was a licence in law, of the vicar of the parish. "If without these be been a tort or misfeasance by the directors, but a breach of trust. These performed Divine service in that chapel, he was not performing it regularly might be persons who came within section 165 who were not guilty of a breach that is, according to law. He was guilty, is be bad been inhibited by the of trust, because they were not trustees for the company, but whenever the bishop, of an ecclesiastical offence; and he was guilty of a common law act wbich came within section 165 was committed by a trustee for the company invasion of the rigbts of the vicar of the parish in performing Divine service there must be a breach of trust more or less virulent, and the Statute of Limita- in his parish without his consent. Tbat being the position of the matter, it tions could cot apply. COTTON, L.J., said that there bad been a misappli- seemed to his lordship plain that the defendant was, both according to cation of the funds of the company. The funds ought to be dealt with for English law and according to ecclesiastical law, which, for this purpose, was the purpose of the business of the company, and they had teen misapplied, pa of the English law, disabled from performing Divine service in this and the court bad power to direct ihat the funds which had been misapplied chapel. It was no answer to say that the persons who had a right to interfere should be brought back by the directors who bed misapplied them. It - viz., the bishop and the vicar—bad not interfered. That did not make him was said that they were liable to repay only what they had put into their own a bit more regular or proper. A man might have a legal right, and he might pockets, not what they had paid to other sbareholders. But a trustee
who not chocse to go to the expense and trouble of enforcing it in a court of law. commitied a breach of trust was liable for wbat he paid to other persons. Then It must be taken that the bishop bad a right to prevent the defendant from it was said that the payment was made to all the members of the corporation, officiating, and that being so, it was a breach of this covenant, and the mean. that it had been confirmed by a general meeting of the ebareholders, and ing attributed to the word '“ regular" by Chitty, J., was correct. BRETT, that the corporation could not after that, sue for it. But there could be no con. L.J., said that if the word "regular" was used abstractedly with regard to a
clergyman of the Church of England it had no meaning, because a clergyman property and the bank shares, which were included in the testator's residuary of the Church of England must be a regular clergyınan of the Church of bequest. Chitty, J., decided against the claini. He was of opinion that the England, or else he was pot a clergyman at all. But the word was part of a above provisions of the deed of settlement did not give the bank any covenant in a lease of a proprietary chapel, and, therefore, it was used with charge or lien on the shores, and that, if there was any charge or regard to the clergyman who was to perform duty in that chapel in relation to lien, it did not stand on an equality with the specific charge created the chapel. The meaning of it then was that he must not only be a clergy, by the equitable mortgage, and that, consequently, there was man of the Church of England, but a clergyman of the Church of England right in the owner of the mortgaged estate to call on the owner of who might perform duty in that church without its being irregular that be the shares to contribute to satisfy the debt. The Court of Appeal should do so. It had not, his lordship thought, anything to do with the (JESSEL, M.R., and BRETT and Cotton, L.JJ.) affirmed the decision, doctrines which he might proach, whether bis doctrine might be JESSEL, M.R., said that the provisions of the deed of settlement were someirregular or not, but it was with relation to his doing duty at all in the what peculiar, but he was unable to imagine any language more clear than church ; and, therefore, it was a covenant that he should not do duty in that of the forfeiture clause, whatever might be thought of its abstraot justice. that church if it would be irregular for bim to do duty at all as a clergyman It was clear that if the company forfeited sbares for non-payment of a debt of the Churoh of England in that church. That was a question of ecolesi. due by the shareholder the debt still remained due ; not a shilling of it was astical law, and he could not perform duty in such a chapel regularly unless paid by the forfeiture. His lordsbip did not see how this provision could be he bad the licence of the bisbop and the consent of the vicar of the parisb. called a security for the debt. The forfeiture was a penalty for non-payment Therefore, no other meaning could be attributed to the covenant than that of the debt. The other clause of the deed carried the matter no further. It the person must not only be a clergyman of the Church of England, but did not impose any penalty on the shareholder, but it conferred on him the must also be a clergyman who could, without ecclesiastical irregularity, per- privilege of transferring the shares on the condition of his paying all debts due form service in that chapel--that is, he must be a person licensed by the by him to the company. It did not provide for payment of the debt. It bishop, and who had the consent of the vicar. Cotton, L.J., said that the was only an inducement to the shareholder to pay it. His lordsbip could not term regular clergyman was not confined to a clergyman who was duly see how it created any charge or lien on the shares. If the forfeited shares ordained, but it required that he should be regular in performing Divine were sold by the company, there was no provision that the proceeds of sale service, pot with reference to the doctrine he preached, but regular ia perform should be applied in payment of the debt. Bat, assuming that a charge or ing in the proper way the servioe in the chapel. He could not do that lien on the shares was created, what was its nature? It could not be pat without the licence of the bishop. Therefore, if that had been withdrawn, he higher than a general charge or lien, which would be the right of the bank to was not, in his lordship's opinion, within the meaning of this covenant, a keep all securities in their hands belonging to their customer till be bad paid regular clergyman of the Church of England. - SOLICITORS, Simpson, all debts due from him to them. That was quite a different thing from a Hammond & Co., 4. D. Smith & Wood; Hume, Bird, d Co.
specific charge on specific real or personal estate. As a rule the equitable doctrine as to contributions between two properties which were security for the
same debt; applied only when the two charges stood on an equality, when the PRACTICB — ADMINISTRATION JUDGMENT - SUBSEQUENT DISCOVERY OF LATER WILL OF TESTATOR AND RETOCATION OF PROBATE-APPEAL.-In a trine did not apply when the one charge was general and the other specific
two properties were a common fund for the payment of the debt. The doo case of Dean v. Wright, before the Court of Appeal on the 2nd inst., a ques. When an estate was mortgaged for a speci6c sum, that was evidence of an in. tion arose as to the proper mode of procedure under the following circumstances. tention that that estate should be the primary fund for the payment of the On the 12th of April, 1881, probate of a will, dated the 16th of November, debt, although the mortgagee might be entitled by custom or otherwise to a 1869, of a testator was granted to his sister, who was named as executrix. general lien on other property belonging to the mortgagor. His lordship An action was afterwards brought by some of the beneficiaries, against the agreed with the decision of Chitty, J., and the reasods he had given for it
. exeoutrix and other beneficiaries, to administer the estate of the testator, and BRETT, L.J., concurred, but said that he did not intend to decide whether, if judgment for administration was pronounced on the 14th of January, 1882. a shareholder owed the bank $10,000, and his shares were forfeited for Qod. After this judgment had been passed and entered a will of the testator, dated payment, and were sold by the bank for £10,000, they could afterwards sus the 8th of May, 1875, was discovered, which made different dispositions. him for the debt. His lordship said he should struggle bard to avoid sach : Application was then made to the Probate Division, and the probate of the construction of the provisions of the deed of settlement. But it was not necessary earlier will was revoked, and letters of administration, with the later will to deside the point now, for the bank having made no demand for payment of annexed, were granted to a daughter of the testator, who was one of the plain the debt of the testator, the power of forfeiture nover arose, and, therefore, tiffs in the action. An application was then made to the Court of Appeal, by could not give any security to the bank. And the power of preventing a share, way of appeal, to discharge the judgment for administration and to dismiss the holder from transferring his shares only arose if he wished to do so. If he did action. Advertisements had been issued, but no creditor bad come in to prove not, the company would be helpless, and that power could not, therefore, be under the judgment. The defendants did not oppose the application, but said to create a charge or lien on the shares. Cotton, L.J., said that the proasked that provision might be made for the payment of their costs. The court visions of the deed of settlement did not create any charge or lien on the at first doubted whether it could entertain an appeal, on the ground that the shares for a debt due by the shareholder to the company, but only enabled judgment was wrong only by reason of a fact (the revocation of probate and the company to put a pressure on the shareholder to compel him to pay the debt, the grant of administration) which had happened after the judgment was pro- and the proper iuference from a mortgage of property for a specific debt was nounced, and suggested that it would be sufficient to stay all proceedings that the testator intended the mortgaged property to be the primary fand for under the judgment. It was, however, urged that the judgment would affect the payment of the debt.-SOLICITORS, Murray, Autchins, d. Stirling. the title to real estate of the testator, and that, in fact, the judgment was erroneous, because tbe earlier will had been revoked by the later one before it was pronounced, though the discovery of this fact was not made, and the PROOF IN BANKRUPTCY-ADMISSION BY TRUSTEE-RIGHT TO APPLI TO grant of probate was not revoked till after the judgment. Ultimately the EXPUNGE-LAPSE OF TIME-BANKRUPTCY Rules, 1870, RR. 72, 73.-In 8 Gurt (JESSEL, M.R., and BRETT and COTTON, L.JJ.), discharged the adminis. case of Ex parte Harper, before the Court of Appeal on the 27th ult, the tration judgment and dismissed the action, on the undertaking of the admin- question arose whether the trustees of an inspectorship deed, execated in 1869 istratrix to pay the costs of the defendants out of the testator's assets.- under the provisions of section 192 of the Bankruptcy Act, 1861, and which proSOLICITORS, Chester, Mayhew, f Co.
vided that the estate of the debtors should be administered as in bankruptcy, could apply in May, 1882, to expunge the proof of a debt which it was said
that they had admitted in May, 1879. Rule 73 of the Bankruptcy Kales, 1870, MORTGAGE_SECURITY ON Two ESTATES—CONTRIBUTION.-In a case of Dun. provides that “il, at any time after the admission of any debt by the trustee lapu. Dunlop, before the Court of Appeal on the 2nd inst., a question arose as to he shall have reason to believe that such debt has been improperly admitted
, contribution between two properties liable to the payment of the same debt. The he may apply to the registrar, upon affidavit setting forth the facts, for a day action was brought for the administration of the real and personal estate of a to be appointed for the court to consider the propriety of expunging the proof testator, who died in August, 1878. He had some real estate in Westmore.
or reducing the amount thereof." JESSEL, N.R., said that rule 73 had no land, and he held some shares in the Manchester and Liverpool Distriot Bank direct bearing on the case, because the deed was executed before the Act of ing Company. The deed of settlement of the company, dated February 22, 1869 came into operation. But that rule only expressed the old rale of prac. 1843, provided that every
shareholder should, on demand by the directors, tice in the Court of Bankruptoy. There was no limit to the time within which pay to the company all debts due from him, and that the shares of every
an application might be made to expunge a proof of debt, and there were shareholder who should omit so to do, and every dividend and bonus declared
numerous cases in which proofs had been expunged after the lapse of years, apon them should be liable to be forfeited to the company for the benefit of on the ground that the original admission was wrong. The new rula was in the other shareholders, and that every proprietor whose shares should so accordance with the old practice. No injustice would be done, for dividends become forfeited should be thereupon considered as expelled from the company; already paid in respect of the proof would not be disturbed. The expanging but the forfeitare of the shares and the expulsion of the proprietor should not only affected future dividends. Brett, L.J., could see no reason why delay be considered as discharging him from the payment of the debt due from him should estop the trustee from expunging that wbich ought never to have been to the company, or from any action for obtaining payment of the same, or admitted. Rule 73 adopted the old practice in the largest possible terms, and from any further liability in respect of the shares, but that he should remain under both the old practice and the new rule, if the trustee bad admitted a liable in raspect of the debt and the shares as if there had been no such prouf in the most formal way, it could, at any time afterwards, however long, forfeiture or expulsion. There was another provision that the holder of shares
be expunged, if it had been originally improperly admitted. Cotton, L J., might transfer the shares, provided that he should have previously, paid every concurred. -SOLICITORS, Simpson & Cullingford ; 'Peacock & Goddard. sum of money due from him to the company, including calls on shares. The testator had borrowed £10,000 from the bank, without any security, except such as arcse out of the above-mentioned provisions of the deed of settlement. COURT OF BANKRUPTCY-JURISDICTION - DISCRETION - STRANGER TO He afterwards borrowed a further sum of £24,000 from the bank, depositing BANKRUPTCY PROCEEDINGS-FRAUDULENT Deed13 Eliz. o. 5-Bank; with them as security the titlo deeds of his Westmoreland property. At his RUPTOY Act, 1869, s. 72. – In a case of Ex parte Price
the Court of death there was more than £30,000 due from him to the bank. The bank Appeal on the 27th ult., the question arose whether the Court of Bankruptor had made no demand for payment. The devisee of the testator's Westmore- 1 ought to exercise its extraordinary jurisdiction under section 72 of the Bank land estates claimed to have the debt due to the bank borne rateably by that ) ruptcy Act, 1869, as against a stranger to the bankruptoy for the purpose of
setting aside a deed which had been executed by the bankrupt about a year Supreme Court, and the attestation shall state that before the execution of the and a half before the commencement of the bankruptcy, and which the trustee bill of sale the effect thereof has been explained to the grantor by the attesting in the bankruptcy alleged to be fraudulent under the statute 13 Eliz. c. 5. solicitor, (2) Such bill, with every schedule or inventory thereto annexed By the deed in question the bankrupt had conveyed to his father, professedly or therein referred to, and also true copy of such bill and of in consideration of £100, some land which was worth about £500, and the erery such schedule or inventory, and of every attestation of the execution of trustee alleged that after the execution of the conveyance the bankrupt con- such bill of sale, together with an affidavit of the time of such bill tinued to deal with the property as absolute owner, and that the conveyance of sale being made or given, and of its due execution and attestation, and a was executed only for the purpose of defeating and delaying the bankrupe's description of the residence and occupation of the person making or giving the creditors, The bankruptcy proceedings were in a county court, and the
and of every attesting witness to such bill of sale, shall be trustee applied to the court for a declaration that the deed was void as against presented to, and the said copy and affidavit shall be filed with, the registrar bim. The father objected to have the question tried in the county court, and within seven clear days after the making or giving of such bill of sale." The insisted that it might be determined in an action in the High Court, where questions arose thus :-In October, 1879, Roper agreed to purchase a leasebe would have the advantage of a jury of twelve men. The judge overruled hold brawery from Booth for $2,500. An assignment to Roper was executed. the objection and made an order declaring the deed void. Bacon, C.J., held | dated the 21st of October, 1879, by wbich Booth acknowledged the receipt of that the case was one in which the Court of Bankruptcy ought not to exercise the £2,500. In fact, only £500 was paid by Roper, it being agred that the its jurisdiction under section 72, bat ought to leave the matter to the ordinary balance of £2,000 should remain on the security of a mortgage to Booth of tribunals. This decision was affirmed by the Court of Appeal (JESSEL., M.R., the property, and a bill of sale to him of the stɔck-in-trade and other losse and BRETT and Cotton, L.JJ.). It was urged, on the authority of Ex parte chattels and effects in the brewers belonging to Roper.
This mortgage Brown (L. R. 11 Ch. D. 148), that, inasmuch the trustee was deed was executed immediately after the assignment, and was dated claiming, not through the bankrupt, but by a bigher and better title, the the 22nd of October, 1879, and it was expressed to be made in Court of Bankruptcy ought to decide the question itself. JESSEL, M.R., said consideration of £2,000 “paid by the grantor to the grantee immediately that after the decision in Ex parte Armitage (L. R. 17 Ch. D. 13), it before the execution of these presents,” the receipt whereof the grantor must be held that section 72 enabled the Court of Bankruptcy to try all cases did thereby acknowledge. No part of the £2,000, in fact, passed between of this kind itself if it was desirable to do so. But the court bad a discretion the parties, bat it was the balance due to Booth upon the parobase whether it would try them or not, and the mode in which that discretion ought of the brewery. The execution of this deed by Roper was attested by a to be exercised was fairly pointed out in Ex parte Armitage. In the present case solicitor, and the attestation clause stated that, before the exsoution, the there was an allegation of gross frand against the father and the son-viz., effect of the deed was explained by the solioitor to Roper. The deed was that they oonspired together to sell the property to the father in order to registered under the Bills of Sale Act, the affidavit filed on the registration cheat tbe creditors of the son. Property worth £500, and questions seriously being made by the attesting solicitor. The affidavit stated that the deaffecting charaoter were involved. The father, who was not a bankrapt, ponent was present and saw Roper sign and execute the deed on the 22nd and who was not direotly amenable to the jurisdiotion of the Court of Bank of October, 1879, bat it did not state that the offoot of the deed was roptoy, desired that the question abonld not be tried in the county court, explained to him by the solioitor before he executed it. Roper filed a bat by the ordinary tribunals, where it would be tried by a judge of high liquidation petition in the Liverpool County Court in August, 1880, and rank, and there would be a jury of twelve men (instead of only five), and the trustee in the liquidation applied to the court to declare the mortgage he could have the assistance of a higher olags of counsel. Was this an deed void as against bim, as regarded the chattels comprised in it, on the udreasonable objection ? Ought the court to compel the father to submit to grounds (1) that the consideration for the deed was not truly stated in it; the jurisdiotion of the county court in a case in wbich the amount at stake and (2) that the affidavit ought to have stated that the effoot of the deed was so mooh beyond the ordinary jariediotion of a county court, except in was explained by the solicitor to the grantor before he executed it. The bankruptoy matters, and such serious questions of character were involved ? county court judge held that the deed was void against the trustee on the The judge of the county court appeared to have thought that he had no latter ground. Bacon, C.J., reversed the decision, holding that peither discretion in the matter, and not to have exeroised any. Therefore there objeotion was tenable. The Court of Appeal (Jessel, M.R., and BRETT was nothing in the objeotion that the Chief Jadge bad interfered with the and Cotton, L.JJ.) affirmed the decision of the Chief Judge. Jessel, exercise of discretion by the county court judge. His lordship thought that M.R., thought that both points were covered by provious decisions. As to the Chief Judge had come to a right conclusion. BRETT, L.J., said that, the first point, the consideration stated in the bill of sale was £2,000 paid assaming that the objection to the deed arose only under the Statute of by the grantor to the grantee icomediately before the execution of the Elizabeth, he thought that the Court of Bankruptoy had jurisdiotion to try deed. What did these words mean, having regard to the facts ? the question, and the only ground on which the order of the county | The grantorowed the grantee £2,000, part of the parobase-money court judge could be interfered with was that be bad a discretion which he of the leasehold property. He had paid him £500 in oash, and he did not exercise. If the matter in dispate had been of small amount-Bay, gave him the bill of sale as security for the balance of £2,000, under £50- his lordship should have thought that the court onght not to and this was accepted by the grantee instead of payment. Was this in interfere with the discretion of the county court judge, if he had exercised law a payment of the £2,000 by the grantor to the grantes ? His lordship it by saying that he would try the case himself. In the same way, if the had no doubt that it was, or that it would support a plea of payment is an amount in dispute had been a large one in & case within the district of the action. It was not necessary that anyone should attend with the £2,000 in London Bankruptoy Court, and the Chief Judge bad said that he would try bank-notes or sovereigns, and that they should be handed over and then handed it himself with a jury, his lordship would not have been inclined to inter- back. When the transaction was a bond, fide one such an arrangement had fere. He thought the case would not stand on any different footing if the always been held to be a payment. And Ex parte Challinor (29 W. R. 205, allegation was that the deed was void, not onder the Statute of Elizabeth, L. R. 16 Ch. D. 260) was an express decision of the Court of Appeal, which but as a fraudulent preference. No doubt the fact that the allegation of had been since recognized, that such a mode of payment was a payment, and fraud was made under the Statute of Elizabeth had something to do with was properly so described. As to the other point, the word " attestation" in the question whether the jurisdiotion should be exeroised, but his lordship sub-section 1 of section 10 of the Act meant the “attestation clause," and that did not wish to preolude himself from saying that, even if the question to be sab-section provided that the same clause should state the fact of attestation, tried was one of fraudulent preference, it might not be right, if the party and also the fact of explanation. The explanation was no part of the attesta. objeoted, that it should not be tried in the Court of Bankruptcy. Bat here tion; it was to take place before the execution of the deed. Then, in subthere was a charge of personal frand, and the father objected to bave a ques- section 2, the word " attestation" meant the attestation itself, and what was tion affecting his character and his right to property worth £500 decided in a required was an affidavit of the attestation—that is, that the deed was signed, county court, not from any personal objection to the judge, but because he sealed, and delivered in the presence of the attesting witness. The words of wished to have the case decided by å jary of twelve of his countrymen the Act, therefore, were satisfied bs the affidavit made in the present case. It under the superintendence of a judge of the Higb Court. Moreover, if it
was suggested that the affidavit should go on to say that before the execution
But there was no was tried in that way, it would be tried at the assizes by a jary of neigh- the deed was explained by the solicitor to the grantor. boars of his own who knew his obaraoter, This was of immense import- such provision in the Act, and it would be wholly unnecessary, for a copy of ance to him, if he was an honest man, and it would be a strong thing to
the attestation clause must be filed on the registration and could be seen by deprive him of this right. Ex parte Armitage was a direot authority for ang creditor of the grantor. Indeed, the very point was decided by this goch a case. COTTON, L.J., concurred.-SOLICITORS, W. W. Wynne & Son; court in Ex parte National Mercantile Bank (28 W. R. 848, L. R. 15 Ch. D. Ullithorne, Currey, $ Villiers.
42), in which it was held that the Act did not require that any actual explana. tion should be given to the grantor, but only that the attestation clause should
state that an explanation had been given. That could not be so if it was BILL OF SALE-STATEMENT OF CONSIDERATION-REGISTRATION-AFFIDAVIT necessary that there should be an affidavit that the explanation was given. -EXPLANATION TO GRANTOR-BILLS OF SALE Act, 1878, ss. 8, 10.-In a The present argument was wholly inconsistent with the decision in that case. case of Ex parte Bolland, before the Court of Appeal on the 27th ult., a ques. Bretr, L.J., said that what took place in the present case would be said bs tion arose as to the statement of consideration in a bill of sale, and there was the any man in business, and would be held in any court of law, to be a payment of further question whether the affidavit which has to be filed on the registration £2,000, and if it was necessary to plead payment in an action, the plea would of a bill of sale ought to contain a statement that the effect of the deed bas, be proved by that which had taken place. As to the other point, it was before its execution, been explained by the attesting solicitor to the grantor. decided by the very words of tbe Act. The execution of the Section 8 of the Bills of Sale Act, 1878, provides that "every bill of sale to bill of sale was to be attested by a solicitor, and when section 10 said which this Act applies shall be duly attested and shall be registered under that the "attestation " should state that, before the execution of the deed, its this Act within seven days after the making or giving thereof, and shall set effect had been explained to the grantor, it must mean that the attestation forth the consideration for which such bill of sale was given," otherwise the clause should state this. The explanation could not be part of the execution, bill of sale is to be void as against a trustee in bankruptcy of the grantor, which was the thing to be attested. Then sub-section 2 said that there was unless apparent possession of the property is taken by the grantee before the to be an affidavit of the “due execution and attestation" of the deed-i.e., filing of the bankruptcy petition. Section 10 provides that "a bill of sale of the fact, not of the clause, of attestation that the person who attested shall be attested and registered under this Act in the following manner :-(1) was present and saw the deed executed. In order to support the present The execution of every bill of sale shall be attested by a solicitor of the argument, sub-section 2 ought to require that the affidavit should state that,