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FELO DE SE.
45 & 46 Vict. C. 19.—An Act To Ahend The Law Belating
TO THE Intebment OF ANY Pebson FOUND FELO DE SE.
[3rd July, 1882.]
The preamble to this Act recites that a further alteration of the law of its subject-matter is expedient; and a reference to 9 Geo. 4, c. 52, which is repealed but re-enacted with omissions and additions by the Act, will show that considerable amendments were effected long ago. The old law was that the felo de se was buried in a highway with a stake driven through his body. This barbarity was abolished by 9 Geo. 4, c. 52, but that Act still prescribed a private burial between nine and twelve at night within twentyfour hours of the verdict of the coroner's jury. The present Act assimilates the mode of burial, so far as the civil law is concerned, to the ordinary mode of burial "in the churchyard or other burial ground of the parish or place in which the remains of the felo de se might, by the laws or custom of England, be interred if the verdict of felo de se had not been found." The ecclesiastical law is dealt with by sections 3 and 4, which provide for the interment "in any of the ways prescribed or authorized by the Burial Laws Amendment Act, 1880," but also direct that, "save as aforesaid, nothing herein contained shall authorize the performing of any of the rites of Christian burial." Turning to the Burial Act of 1880, we find that section 13 of that Act relieves the clergy of the Church of England from any ecclesiastical penalties for using, "in any ease where the office for the burial of the dead, according to the rites of the Church of England, may not be used," such service out of the Prayer Book or Bible "as may be prescribed or approved of by the Ordinary." Amongst the cases where the regular Burial Service may not be used, the rubric prefixed to that service designates the case of persons who "have laid violent hands on themselves," and the section seems to have reference to this rubric. In cases where the ordinary has prescribed no form, it seems that no service can be performed by a clergyman of the Church of England. If the felo de se should have died out of communion with the Church, however, the burial may take place, by the effect of section 3 of the present Act and section 6 of the Burial Act of 1880, either without any religious service, or with such Christian and orderly religious service (performed by a Nonconforming minister) as the person having charge of the burial shall think fit.
45 & 46 Vict. C. 20.—An Act To Amend The Poob Rate Assessment And Collection Act, 1869. [3rd July, 1882]. This Act is short but important. It contains two euacting sections only, one getting rid of the effect of Werburgh Overseers v. Hutchinson (L. R. 5 Ex. D. 19) and Sore v. Putney Overseers (L. R. 7 Q. B. D. 223), in which it was held that an outgoing occupier was liable for the whole of a rate, although he might not be immediately succeeded in his occupation by an incomer; and the other getting rid of the effect of Beg v. Dyott (L. R. 9 Q. B. D. 47), in which it was held that there could be no publication of a rate within the meaning of 17 Geo. 2, c. 3, as amended by 7 Will. 4 and 1 Vict. c. 45, and therefore no rate at all by virtue of the first-named statute, in a parish which possessed neither church nor chapel. The title of the statute shows that the second enactment was added while the Bill was passing through Parliament. The meaning of it is simply to reverse the case law as laid down in the decisions we have referred to. With regard to the publication of the rate, we may repeat what we said on a former occasion, that publication in a Nonconformist chapel will not be sufficient. "Chapel" in an Act of Parliament means a chapel of ease or other chapel in connection with the Church of England. The Legislature has, in some cases— eg., for the purposes of the parliamentary registration—recognized the desirability of publication of notices upon the doors of Dissenting chapels, but has, in such cases, emploj cd such unambiguous expressions as " every chapel, including places of public worship which do not belong to the Established Church" (6 Vict, c. 18, s. 23).
WILSON'S JUDICATURE ACTS. Wilson's Supbkmb Court Op Judicature Acts, Appellate Jurisdiction Act, 1876, Eules Op Court And Forms, With Other Acts, Orders, Rules, And Keoulations Relating To The Supremb Court. With Practical Notes. Third Edition. By If. D. Chalmers, Barrieter-atLaw, assisted by Herbert Lush-Wilson, Barrister-at-Law. Stevens & Sons.
The addition of 100 pages or so to this edition of Wilson has not deprived the book of the handiuess which has always been one of its characteristics, but we canuot help looking with apprehension on its growing size. So far as this is the result of the ever-increasing mass of parliamentary and judicial legislation and decision, it is, of course, unavoidable, but we regret to discern some tendency in the earlier part of the work to swelling out the notes with unnecessary matter. For instance, in the last edition Mr. Wilson appended to section 25, sub-section (6), a note of a few lines, stating that "this sub-section does not make anything an assignment which was not an assignment before, either at law or in equity," referring to Schroeder's case. We have now a note of about a page in length, commencing with a statement of the rule before the Judicature Act as to the assignment of a chose in action; then proceeding to notice the provisions of the Policies of Assurance Act, 1867, the Policies of Marine Insurance Act, 1863, and the provisions of section 27 of the Conveyanciug Act. All this information upon the general subject of the assignment of choses in action is, we venture to suggest, nearly useless; for if the practitioner wants information as to this general subject, he is not likely to seek it in a book on the Judicature Acts, and the student is certain to prefer the iuformation given in works specially intended for him. In the first edition of a commentary on a new statute some short reference to the previous state of the law is allowable, but the less there is of it in subsequent editions the better. Even some of Mr. 'Wilson's admirable notes on the statute of 1873 might, we think, now be abridged in this respect with advantage. We should also like to see removed from the next edition all notes or portions of notes which ure mere paraphrases of legislative provisions. Since the Conveyanciug Act there has come into vogue a style of note which is wearisome and irritating in the highest degree. If a section were, say, to abolish acknowledgments by married women, a learned commentator would be certain to observe in his note that "by this section provision is made for the abolition of acknowledgments by married women." Mr. Chalmers' notes to the Act are not altogether free from this kind of remark, but it is happily very infrequent.
Having said so much in the way of criticism, we may now baar testimony to the merits of the present edition. The notes to the rules are 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. Chalmers in his notes to the rules. Usually the exact point decided is 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 which we have looked, and have found the effect of the decisions stated with accuracy and terseness. The rules, forms, and orders issued since the last edition (including the recent Practice Masters' Rules) are given in full. The index seems to have been entirely re-modelled, and is very convenient and well-arranged.
Grant's Treatise On Thb Law Relating To Banxebs. Foubth Edition-. By Claude C. M. Plumptbe, Barrister-at-Law. Butterworths. The first edition of this work was published in 1856, being, as the author stHted in his preface, " the result of an endeavour to compile the law relating to the business of banking as gathered from statutes aud the decisions at common law, in equity, aud in bankruptcy," in which endeavour the author conceived it to be his first duty to aim at "practical utility," and gave certain "rules, suggestions, and cautions for the conduct of bankers, as much as possible expressed in the language of business, divested of legal technicalities." The second and third editions were the work of Mr. R. A. Fisher, and the third edition was issued in 1873. In the nine years which have passed since that date many cases of great importance have been decided, and the Crossed Cheques Act and two Baukers' Books Evidence Acts have beeu passed. The present editor has " endeavoured to follow as nearly as possible the arrangtmeut adopted in the previous editions," with necessary alterations; being "obliged to curtail or merely refer to many cases hitherto cited as authorities, so as to afford space for fresh matter," rewriting the chapter on bankruptcy, aud adding a new chapter on bills of tale, together with the Act of 1878 in extenso iu the appendix; which new chapter perhaps might have been dispensed with as not sufficiently 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 the general mode of executiou 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. The heading " Books " finds no place in the index; Harding v. William* (L. It. 14 Cb.« D. 197)—the correctness of which may be gravely doubted —is curtly dispatched in a short note, and the whole Act has only four lines given to it in the text. Next, we will take Hopkinson v. Foster (L. B. 1U Eq. 74), in which it was held, before the Judicature Act, that a cheque is not au equitable assignment of the drawer's balance. Mr. Plumptre, though he cites Schroeder v. Central Bank of London (24 W. B, 710), in which it was held that the Judicature Acts did not alter the law, does not, we think, sufficiently indicate the effect of that decision, and unfortunately adds, after stating the effect of Hopkinson v. Foster, that, "now, by section 25 of the Judicature Act, ... all debts are assignable." Moreover, the reader would probably like to know whether the effect of Hopkinson v. Foster roally is that, if a customer having £1,000 balance draws a cheque for £1,001, the banker is justified In dishonouring the cheque. We find nothing about this under the head "Balance" in the index. Then, so important a case as Suffell v. Bank of England (30 W. B. 48), decided on July 4, 1881, ought to have been fully dealt with in a book bearing 1882 on the titlepage. It is included, though too briefly, in the addenda. On the whole, we regret that we cannot bestow any very high praise on this edition.
LIABILITY OF EMPLOYERS. A Summary Of The Law Of The Lubility Of Employers Fob Personal Injuries. By W. Howland Roberts and George Henry Wallacb. Barristers-at-Law. Beeves & Turner.
We can cordially recommend this little treatise to all persons interested in its subject. Tho very latest cases will be found, and the important case of Griffith* y. Earl Dudley, at the date of publication unreported, is given at length. There is also a valuable note on " Insurers under the Act of } 880." One fault we have to And, however, is that the authors 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 citing Couch v. f-teel (3 E. & B. 402), a well-known decision on the repealed 7 & 8 Vict. c. 112, they omit to say whether or not the decision applies t° the corresponding section of the Merchant Shipping Act, 1854, or even to mention whether that Act contains a corresponding section at all.
A Digest Of The Ebpohted Decisions Of All The Courts, Including A Selection From The Irish (being A Continuation Of Fisher's Dioest), &c, During Thb Year 1881. By John Mews, Birrister-nt-Law. H. Sweet.
This is certainly in design one of the most complete digests in existence. It not only contains all the English cases of the year (with references to all the series of reports), and tho leading Itish cases 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 187080, affirmed, reversed, or varied by the decisions reported in 1881 ; cases in the Digest for 1880 affirmed, reversed, or varied; cases followed and approved, and, lastly, very valuable lists of "cases not followed, overruled, and questioned," " cases explained and commented on," and " cases distinguished," With regard to the execution of the work, the general headings are sufficient' in number and usually well selected. The reader is tolerably sure to And his way very speedily to any class of cases he may wish to examine. The sub-heads to the more important heads do not appi-iir to hate been always selected with equal judgment, or arranged very carefully. Thus, to take the heading "Landlord and Tenant," the sub-heads are (1) creation of tenancy, which is again subilividt d into agreements for leases, leases, and implied tenancies; followed by'(S)'covenants;'(8) rent; (4) rights and liabilities of landlord and tenant; and (5) termination of tenanoy. The seeond and third heads should have been sub-heads to the fourth head. Similarly, under the head "Trust and Trustee" the case placed under the sub-head "Belation of Co-trustees" should clearly have come under the Rub-head "Liability of Trustee's." TTie statement of the cases is generally very satisfactory. The cross-references are numerous, and usually accurately express the substance of the case referred to, though to this we must make an exception fn the case of Oceanic Steam Navigation Company v. Suthern'rry (column 437), which we should not recognize by the description, 'Trait created by parting with leaseholds of deceased by executor <t ndirilnlstrntor." The several tables of cases followed, overruled, and i xplaltled represent s large amount of labour, and although we have applied Various tests to them we hare not found them deficient.
SURVEYORS OF HIGHWAYS—LIABILITY TO REPAIR FENCES.
[To the Editor of the Solicitors' Journal.] Sir,—I have had occosiou to consult text-books latterly upon the quation of the liability of a surveyor of highways for the repair of fences on the side of a highway, and have been much struck with the absence of either statutory or case authority on the subject. So far as my researches extend, I have not been able to discover any distinct case bearing upon the liability alluded to.
A surveyor of highways appears to be in considerable difficulty, for however willing he may be to accept tho liability, he is subject to bis accouuts being audited and surcharged in respect of payments improperly
made. At the present time, I know a surveyor of highways who, positively not being able to satisfy himself upon the point of liability to repair fences, has allowed certain fences to remain in a bad state o(
repair, in order that someone may take proceedings against him, so that his liability may bo ascertained.
I suppose that the highways have been made, originally, through someone's property, and it would, on the construction of such roads, be necessary for fences to be made on each side of the roads to protect the adjoining property, but who would make these fences originally, andwh;> continue to repair them, seems to be a question of some doubt.
I think I read, within the last month, of a case deciding the question of liability of surveyors of highways to repair milestones, wherein ii recent Act of Parliameut was quoted having reference to milestones and also to fences. Can any reader remind me of this case, and give me the number and reference to the statute, and any other information on the subject of a surveyor of highways' liability to repair fences adjoining highways, or any reference to cases and, text-books? Eaoo.
[The Act referred to is, probably, the Act of the present session, 45 k 46 Vict. c. 27, as to fencing dangerous places near highways: see anU, p. 609.—Ed. & J.]
"LAND OF ANY TENURE."
Sir,—With reference to the doubt expressed by you in the article on section 18 of the Couveyancing and Law of Property Act, 1881, contained in your issue of July 15, as to whether the expression "land of any tenure" in the interpretation clause of that Act would include > leasehold interest, allow me to remind you that the same expression, "land of any tenure," occurs in the 23rd section of the Bankruptcy Act, 18G9, the section relating to the disclaimer of onerous property. In that case it is, of course, beyond doubt that these words apply to all sorts ot leasehold interests in land. It has even been held recently that a disclaimer under this section will operate as a surrender of personal chattels leased with land to the bankrupt. (See Ex parte Allen, In re Fumcm, 30 W. R. 601, L. E. 20 Ch. D. 341.) A. J. Sfbxcbr.
Lincolu's-iun, Aug. 1.
[See remarks elsewhere.—Ed. S. J.]
CASES OF THE WEEK.
Company—Winding Up—Director—Breach Of Trust—Misfeasisci —Payment Of Dividends Out Of Capital—Companies Act, 1862, 8. 165. —In a case of In re The Exchange Banking Company, before the Cjurt of Appeal on the 26th ult., the question arose whether, in the winding ap of > company, the directors coold, under section 165 of the Companies Act, 1868, bs compelled to pay to the liquidator moneys which they had improperly f»i by way of dividend to the shareholders out of the capital of the company, no profits having been made, on the ground that they had been guilty of a breach of trust or misfeasance in so doing. Bioon, V.C , held that the directors were jointly liable to pay the moneys in question, and the Court of Appeol (jessel, M.R., and Brett and Cotton, L JJ ) affirmed bis dec sion, except that they held that tiie directors were severally as well as jointly liable. It»" contended that In re Ihe National Fundi Assurance Company (27 W. R. 302, L. R. 10 Ch. D. 118) would have been differently desided if it had been deeidod after the decision of the Court of Appeal in Coventry and Dizon'i w (28 \V. R. 775, L. K. 14 Ch. D. 660); that section 165 created no ne» right against directors, but was intended only to provide a summitry mode of enforcing Jan old right, and it was said that in an action by the liquidator, as repre-eoting the company, against the directors, it would have been a good answer that all the shareholders, by receiving the dividends, had acquiesced in the breach of trust. At any rate, only the dividends received by the directors themselves co"ld be reoovered. Jesskl, M.R., Slid the question I** whether the Vice-Chancellor had authority to make the order. Toe directors bat for aevoral yeirs before the winding up of the company, been in the bsbi! of providing false halan*c-sheets. They bad entered a numbjr of deb'?, which they knew to K> bid, among the assets of tin company as good dtbts, and bad tboB made it appear to tbe shareholders that there had been a profit, when they knew there had been none, and had indnced tbe shareholders to declare dividends out of these assumed profit", and bad paid those dividend* to the shareholder*. The liquidator, after the winding np, applied for an order that tbe di'ectors should pay to him tbe sums thus paid away as dividend?, and the Yice-Chancellor, following In re The National Funds Assurance Company, had made tbe order. Tbe ground of the appeal was that that case was decided before tho decision of the Court of Appeal in Coventry and Dixon's ease, and that that esse had decided (as his lordship thought it did decide) that, under section 165 of the Companies Act, 1862, directors could not be made liable for anything for which they would not have been liable independently of tbe section, but that that section only provided a summary mode of enforcing the liability. It did not, however, decide that directors could not be made liable for anything for which they would not have been liable independently of the Act of 1862. If the decision in In re The National Funds Assurance Company had been founded only on some new equity arising under section 165 it could not now stand. But it appeared to his lordship that it was founded on an equity quite independent of that section. The case might be put shortly tLu9 :—A company formed under the Act of 1862, with limited liability, declared by its memorandnm of association that its capital of a certain amount was to be appropriated to tbe carrying on of its business. It could not alter tbe memorandum by diminishing the amount of the capital, and, looking at the machinery supplied by the subsequent Act of 1867 for the reduction of the capital of a company wiih the sanction of the court, it was plainly tbe intention of the Legislature that the capital of a company was not to be returned to the shareholders without the sanction of the court. The capital could not be returned to tbe shareholders at all so long as the company was carrying on business. It followed that no sanction to such a return of capital, given by a general meeting of the shareholder.', was of any validity at all. It being beyond the powers of the company, the sanction of a general meeting could not make it within its powers. Therefore, even if tbe shareholders knew the facta, they could not authorize such a thing to be done. Aud there was another reason why it could not be done. There was either an implied contract with the creditors, or a representation made to them, upon which they acted, and on the faith of this implied connect or representation they gave endit to the company. There was no other debtor to them j the impalpable corporation had no property but its capital. The creditor trusted to the capital, or to tbe company, on the faith of the implied contraot or representation as to tbe amount of the capital, it did not matter which it was called. And the creditor bad tbe right to compel the corporation to keep its capital, and not to return it to tbe shareholders, ard had a remedy against tbe directors if tbey misapplied tbe capital in that way, though possibly that remedy might not be available without a judgment. It seemed to follow that directors who bad improperly paid away assets of the company in that way were liable to repay what they had 10 paid, and it was immaterial whether tbe shareholders could compel them to do so if there was no winding up. Were the directors the less liable because the liquidator represented, not only the whole company, but also the cieditors? In an ordinary case—i.e., when the shareholders had acted on the representation of the directors, the liquidator, as representing the company, eould compel the directors to repay. It was quite possible that a company might have been ruined by a return of capital improperly made in consequence of the false representations of the directors, and it might well happen tbat the shareholders as tuch might have a right to complain. It was not necessary to refer to previous decisions to show the principles on which directors were liable in such cases, but his lordship thought the true view was that of an implied contraot with the creditors, and, if so, Evans v. Coventry (8 D. M. & G. 835) was in point. His lordship thought the Vice-Chancellor's order was right, except that tbe directors should be made jointly and severally liable, and not merely jointly. Bbett, L.J., did tot doubt that the payment ol the dividends out of capitnl was a breach of trust It was said that tbe shareholders, by accepting the dividends, bad acquiesced in or ratified tbe payment. But their assent was obtained by means of untrue accounts shown to them, which tbey did not know to be untrue, and there could be no ratification in tbat way. Even if tbey had known the faots, his lordship thought that the shareholders acting as such could not ratify the payments. If they cculd do so, the liquidator could still complain as tbe company itself could have done, for the aggregate shareholders were not the corporation. The individua shareholders might change from time to time, and if the shareholders remained the same, still the company could sue the directors, who were trustees for tbe company, and not for any individual members of it. His lordship thought tbat tbe liquidator represented the company for the purpose of obtaining anything to which tbe company was entitled, and also in regal d to its duty to its creditors. It was his duty to do tbat which the company ought to do to obtain the return of a'sets which ought to he applied in paying the creditors. The case was clearly within section 165, not en the ground that there had been a tort or misfeasance by tbe directors, but a breach of trust. These might be persons who csme within section 165 who were not guilty of a breach of trust, because they were not trustees for the company, but whenever tbe act which came within section 165 was committed by a trustee for the company there must be a breach of trust more or lees virulent, and the Statute of Limitations could not apply. Cotton, L.J., said that there bad been a misapplication of the funds of the company. The funds ought to be dealt with for the purpose of the business of the ccmpany, and they had teen misapplied, and the court bad power to direct that the funds which had been misapplied should be brought tack by the directors who bed misapplied them. It was said that tbey were liable to repay only what they had put into their own pockets, net what ttey bad paid to other shareholders. But atrusteewho committed a breach of trust was liable for what he paid to other persons. Then it was said that the payment was made to all the members of tbe corporation, that it had been confirmed by a f eneral meeting of the shareholders, and that tbe corporation could not, after that, sue for it. But there could be no con
firmation unless tbe facts were known, and the allegation was that the balance-sheets were fraudulent, and the shareholders did not receive any in» formation as to the real state of the case. Then it was said tbat the corporation conld not sue the directors, because it was the aggregate of the shareholder* who had received tbe money. But the corporation was something very different from the individual shareholders, or tbe aggregate of the shareholders. The case would be very different if the money was now wanted for the purpose of dividing it among the shareholders, but it was wanted to pay the debts of the company.—Solicitors, Goldring d; Mitchell; Clarke, Woodcock, tfc Upland.
Restrictive Covbnant—Use Of Proprietary Chapel—" Regular" Clebgyman.—In a case of The Governors of the Foundling Hospital v. Dunbar, before the Court of Appeal on tbe 28tb ult., the deoision of Chitty, J. (noted ante, p. 631), was affirmed. The question was as to the meaning of the words "regular clergyman of the Church of England" in a covenant by the lessee of a proprietary cbapel restricting the use of the building. The appeal was from an order restraining the defendant from officiating or performing Divine service in the chapel in question. Tbe plaintiffs were the lessors of the chapel, the defendant was an assignee of the lease. The lease, which was made in 1802, for a term of ninety-nine years, contained a covenant that the lessee "should not at any time during the term permit any clergyman or person to officiate in the chapel or perform publio Divine service therein but such as should be a regular clergyman of tbe Church of England." In January, 1880, the defendant wrote to the Bishop of London, resigning tbe licence granted to him in 1877, and this resignation bad been accepted, and be had, in fact, been prohibited by tbe bishop from performing service in tbe dioceFe. The vicar of the parish, in answer to a question whether the defendant had asked bis leave to officiate in the parish, bad written that he had not done so, and that such leave would have been refused if he had asked for it ; but, on the other hand, the defendant asserted that he obtained the vicar's consent, an^ that such consent, when given, could not be revoked or annulled. Shortly after (he revocation Of his licence the defendant registered the chapel as a place of meeting for religions worship, but the RegistrarGeneral afterwards cancelled the registration, having received a report that the chapel had ceased to ba used for religious worship. Chitty, J., was of opinion that the word "regular" was used as a qualification of the word "person," and said that, as he understool the law, a clergyman of the Church of England must be duly ordained and also licensed by the bishop before he was at liberty to perform Divine serviee or to preach. That was tbe ecclesiastical law, and the law of the land. The defendant was not licensed, and, in fact, had been prohibited, and there was, therefore, in his case an absence of some of the legally requisite qualifications. It was urged on tbe appeal tbat as the defendant had been duly ordained by a bishop of tbe Anglican Church (the Bishop of Ceylon), there was no sense in which it could be said that he was not a "regular" clergyman of the Church of England. The mere fact that he had himself resigned his licence, or even that the licence had been revoked by the bishop, could not undo his orders. The word "regular," so far as it was not Bnrplussge, merely meant " duly constituted," and if it had been intended by tbe lessor tbat this chapel should only be served by "licensed" clergymen, it would have been so expressed in the lease. Neither the bishop nor the vicar had taken any proceedings to restrain the defendant from officiating in this chapel. Jessel) M.B., said that what wss the meaning of tbe draftsman and what was the meaning of the lessor and lessee when they signed that lease be did not know, nor was be concerned to inquire. All he had to find out, if he conld, was what was the meaning of the expression used. The expression "regular clergyman" was a new expression, and one be never saw before; and, as far as he could find out, nobody ever saw it before, for his lordship had looked at a great many books on the subject, and the expression was not to be found in any of them. The first difficulty in tbe appellant's way was that Chitty, J., bad put a rational meaning on tbe word "regular." He had held that "regular" meant a person who could officiate in that place without being guilty of irregularity, or could properlyjofficiate. That was an intelligible meaning, and it gave effeotto the word. The appellant gave no effect to it, and could not suggest My other meaning. Therefore, if it was to have any meaning at all, that was the meaning. What tbe appellant wanted the court to say was that it was mere surplusage, and had no meaning at all. That was a very difficult task, because being a word put in, not as a common form, but upon a subject quite extraordinary and new, it must be assumed it was to have some mean ing; and, no other meaning being suggested, and that being a rational meaning, he thought it ought to prevau. The facta were very strong in favour of that view. No one had a right to perform Divine service in this chapel^ however regularly ordained as a clergyman of the Church of England, without having obtained two things—the licence of tbe bishop, ana the consent, which was a licence in law, of the vicar of the parish. If without these be performed Divine service in that chapel, he was not performing it regularly—! that is, according to law. He waa guilty, if be bad been inhibited by 'the bishop, of an ecclesiastical offence; and he was guilty of a common law invasion of the rights of the vicar of the parish in performing Divine service in his parish without his consent. That being the position of the matter, it seemed to his lordship plain that the defendant was hoth aocordicg to English law and according to ecclesiastical law, wbicb, for this purpose, was part of tbe English law, disabled from performing Divine service in this chapel. It was no answer to say that the persons who had a right to interfere —viz., tho bishop and the vicar—had not interfered. That did not make him a bit more regular or proper. A man might have a legal right, and he might not choose to go to tho expense and trouble of enforcing it in a court of law. It must be taken that tbe bishop had a right to prevent the defendant from officiating, and that being so, it was a breach of this covenant, and the meaning attributed to the word "regular" by Chitty, J., was correct. Brett, L. J., said tbat if tbe word "regular" was used abstractedly with regard to a
clergyman of the Church of England it had no meaning, because a clergyman of the Church of England must be a regular clergyman of the Church of England, or else he was not a clergyman at all. Bat the word was part of a covenant in a lease of a proprietary chapel, and, therefore, it was used with regard to the clergyman who was to perform duty in that chapel in relation to the chapel. The meaning of it then was that he must not only be a clergyman of the Church of England, but a clergyman of the Church of England who might perform dnty in that chorch without its being irregular that he should do so. It had not, his lordship thought, anything to do with the doctrines whioh he might preacb, whether his doctrine might be irregular or not, but it was with relation to his doing duty at all in the church ; and, therefore, it was a covenant that he should cot do duty in that cbnrch if it would be irregular for him to do duty at all as a clergyman of the Chnroh of England in that church. That was a question of ecolesiaatical law, and he could not perform duty in such a chapel regularly unless he bad the licence of the bishop and the consent of the vicar of the parish. Therefore, no other meaning could be attributed to the covenant than that the person must not only be a clergyman of the Church of England, but must also be a clergyman who could, without ecclesiastical irregularity, perform service in tbat chapel—that is, he must be a person licensed by the bishop, and who had the consent of the vicar. Cotton, L.J., said that the term "regular clergyman" was not confined to a olergyman who was duly ordained, but it required that he should he regular in performing Divine service, not with reference to the dootrine he preached, hut regular iu performing in the proper way the servioe in the chapel. He could not do that without the licenoe of the bishop. Therefore, if that had been withdrawn, he was not, in bis lordship's opinion, within the meaning of this covenant, a regular clergyman of the Church of England. — Solicitors, Simpson, Hammond <t Co.; A. D. Smith is Wood ; Home, Bird, it Co.
Practice— Administration Judgment — Subsequent Discovery or Later Will Of Testator And Revocation Of Probate—Appeal.—In a case of Dean v. Wright, before the Court of Appeal on the 2nd inst., a question arose aa to the proper mode of procedure under the following circumstances. On the 12th of April, 1881, probate of a will, dated the 16th of November, 1869, of a testator was granted to his sister, who was named as execntrix. An action was afterwards brought by some of the beneficiaries, against the exeoutrix and other beneficiaries, to administer the e-tate of the testator, and judgment for administration was prononnced on the 14th of January, 1882. After this judgment had been passed and entered a will of the testator, dated the 8th of May, 1875, was discovered, which made different dispositions. Application was then made to the Probate Division, and the probate of the earlier will was revoked, and letters of administration, with the later will annexed, were granted to a daughter of the testator, who was one of the plaintiffs in the action. An application was then made to the Court of Appeal, by way of appeal, to discbarge the judgment for administration and to dismiss the action. Advertisements had been issued, but no oreditor had come in to prove under the judgment. The defendants did not oppose the application, but asked that provision might be made for the payment of their costs. The court at first doubted whether it could entertain an appeal, on the ground that the judgment was wrong only by reason of a fact (the revocation of probate and the grant of administration) whioh had happened after the judgment was pronounced, and suggested that it would be sufficient to stay all proceedings under the judgment. Ic was, however, urged that the judgment would affect the title to real estate of the testator, and that, in fact, the judgment was erroneous, because the earlier will had been revoked by the later one before it was pronounced, though the discovery of this fact was not made, and the grant of probate was not revoked till after the judgment. Ultimately the oourt (jessbl, M.K., and Brett and Cotton, L.JJ.), discharged the administration judgment and dismissed the action, on the undertaking of the administratrix to pay the costs of the defendants out of the testator's assets.— Solicitors, Chtiter, Mayhem, £ Co.
Mortgage—Security On Two Estates—Contribution.—In a oase of Dun. lap v. Dunlop, before the Court of Appeal on the 2nd inst., a question arose as to Contribution between two properties liable to the payment of the same debt. The action was brought for the administration of the real and personal estate of a testator, who died in August, 1878. He had some real estate in Westmoreland, and he held some shares in the Manchester and Liverpool Distriot Banking Company. The deed of settlement of the company, dated February 22, 184S, provided that every shareholder should, on demand by the directors, pay to Uw company all debts due from him, and that the shares of every shareholder who should omit so to do, and every dividend and bonus declared upon them should be liable to be forfeited to the company for the benefit of the other shareholders, and that every proprietor whose shares should so become forfeited should be thereupon considered as expelled from the company, but the forfeiture of the shares and the expulsion of the proprietor should not be considered as discharging him from the payment of the debt due from him to the company, or from any action for obtaining payment of the same, or from any further liability in respect of the shares, but that ha should remain liable in respect of the debt and the shares as if there had been no such forfeiture or expulsion. There was another provision that the holder of shares might transfer the shares, provided that he should have previously paid every sum of money due from him to the company, including calls on shares. Tho testator had borrowed £10,000 from the bank, without any security, except inch as arcse out of the above-mentioned piovisions of the deed of settlement. He afterwards borrowed a further sum of £24,000 from the bank, depositing with them as security the titlo deeds of his Westmoreland property. At his death theie was more than £30,000 due from him to the bank. The bank bad made no demand for payment. Tho devisee of the testator's Westmoreland estates claimed to have the debt due to the bank borne rateably by that
property and the btnk shares, which were included iu the testator's residuary bequest. Chitty, J., decided against the claini. He was of opinion thit the above provisions of the deed of settlement did not give the bank any charge or lien on the shares, and that, if there was any charge or lien, it did not stand on an eqnality with the specific charge create! by the equitable mortgage, and that, consequently, there was so right in the owner of the mortgaged estate to call on the owner of the shares to contribute to satisfy the debt. The Court of Appeal (jessel, M.R., and Brett and Cotton, L.JJ.) affirmed the decision, Jessbl, M.R., said that the provisions of the deed of settlement were somewhat peculiar, but he was unable to imagine any language more clear than that of the forfeiture clanse, whatever might be thought of its abstraot justice. It was clear that if the company forfeited shares for non-payment of a debt due by the shareholder the debt still remained due ; not a shilling of it was paid by the forfeiture. His lordship did not see how this provision could be called a security for the debt. The forfeiture was a penalty for non-payment of the debt. The other clause of the deed carried the matter no further. It did not impose any penalty on the shareholder, but it conferred on him the privilege of transferring the shares on the condition of his paying all debts due by him to the company. It did not provide for payment of the debt It was only an inducement to the shareholder to pay it. His lordship conld not see how it created any charge or lien on the shares. If the forfeited share! were sold by the company, there was no provision that the proceeds of sale should be applied in payment of the debt. But, assuming that a charge or lien on the shares was created, what was its nature? It could not be pat higher than a general charge or lien, which would be the right of the bank to keep all securities in their h mda belonging to their customer till be bad paid all debts due from him to them. That was quite a different thing from a 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 two properties were a common fund for the payment of the debt. The doctrine did not apply when the one charge was general and the other specific. When an estate was mortgaged for a specific sum, that was evidence of an intention that that estate should be the primary fund for the payment of the debt, although the mortgagee might be entitled by custom or otherwise to a general lien on other property belonging to the mortgagor. His lordship agreed with the decision of Chitty, J., and the reasons he had given for it. Brett, L. J., concurred, but said that he did not intend to decide whether, if a shareholder owed the bank £10,600, and his shares were forfeited for nonpayment, and were sold by the bank for £10,000, they could afterwards we. him for the debt. His lordship said he should struggle hard to avoid such a construction of the provisions of the deed of settlement. But it was not necessary to decide the point now, for the bank having made no demand for payment of the debt of the testator, the power of forfeiture never arose, and, therefore, could not give any security to the bank. And the power of preventing a shareholder from transferring his shares only arose if he wished to do fo. If he did not, the company would be helpless, and that power could not, therefore, be said to oreate a charge or lien on the ahares. Cotton, L. J., said that the provisions of the deed of settlement did not oreate any charge or lien 00 the shares for a debt due by the shareholder to the company, but only enabled the company to put a pressure on the shareholder to compel him to pay the debt, and the proper luference from a mortgage of property for a specific debt was that the testator intended the mortgaged property to be the primary fund for the payment of the debt.—Solicitors, Murray, Hutching, is Stirling,
Proof In Bankruptcy.—Admission By Trustee—Right To Aptm To Expunge—Lapse Of Timb—Bankruptcy Rules, 1870, Rr. 72, 78.—In » case of Ex parte Earper, before the Court of Appeal on the 27th nit, the question arose whether the trustees of an inspectorship deed, executed in 1369 under the provisions of section 192 of the Bankruptcy Act, 1861, and which provided 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 raid that they had admitted in May, 1879. Rule 73 of the Bankruptcy Kales, 1870, provides that "if, at any time after the admission of any debt by the trustee, he shall have reason to believe that such debt has been improperly admitted, he may apply to the registrar, upon affidavit setting forth the facts, for 1 day to be appointed for the court to consider the propriety of expunging the |roof or reducing the amount thereof." Jessel, M.R., said that rule 73 had <"> direct bearing on the case, because the deed was executed before the Act of 1869 came into operation. But that rule only expressed tie old rule of practice in the Court of Bankruptcy. There was no limit to the time within wui«> an application might be made to expunge a proof of debt, and there were numerous cases in which proofs had been expunged after the lapse of years, on the ground that the original admission was wrong. The new ruls was ln accordance with the old practice. No injustice would be done, for dividends already paid in respect of the proof would not be disturbed. The eipuogmg only affected future dividends. Brett, L.J., could see no reason why delay should estop the trustee from expunging that which ought never to have been admitted. Rule 73 adopted the old practice in the largest possible terms, »«» under both the old practice and the new rule, if the trustee had admitted a proof in the most formal way, it could, at any time afterwards, however lone, be expunged, if it had been originally improperly admitted. Cotton, Lj-i concurred.—Solicitors, Simpson ii Cuttingford; Peacock is Goidtrd.
Court Of Bankruptcy—Jurisdiction — Discretion — Stringer t0 Bankruptcy Proceedings—Fraudulent Deed—13 Eliz. O. 5—B»sS; Ruptcy Act, 1869, s. 72.—In a case of Ex parte Price, before the Court » Appeal on the 27th ult., the question arose whether the Court of Bankrupicj' onght to exercise its extraordinary jurisdiction under section 72 of the B»a • ruptcy Ao>, 1869, as against a stranger to the bankruptcy for the purpose
setting aside a deed which had been executed by the bankrupt about a year and a half before the commencement of the bankruptcy, and whioh the trustee in the bankruptcy alleged to be fraudulent under the statute 13 Eliz. c. 5. By the deed in question tbe bankrupt had conveyed to his father, professedly in consideration of £100, some land which was worth about £500, and the trustee alleged that niter the execution of the conveyance the bankrupt continued to deal with the property as absolute owner, and that the conveyance was executed only for the purpose of defeating and delaying the bankrupt's creditors. The bankruptcy proceedings were in a county court, and the trustee applied to the court for a declaration that the deed was void as against him. The father objected to have th« question tried in the county court, and insisted that it might bo determined in an action in the High Court, where he would have the advantage of a jury of twelve men. Tbe judge overruled the objection and made an order declaring the deed void. Bacon, C.J., held that the case was one in which the Court of Bankruptcy ought not to exercise its jurisdiction under section 72, but ougljt to leave the matter to the ordinary tribunals. Tbis decision was affirmed by the Court of Appeal (jesse r., M. ft., and Beett and Cotton, L.JJ.). It was urged, on the authority of Ex parte Brown (L. R. 11 Ch. D. 148), that, inasmuch as tbe trustee was claiming, not through the bankrupt, but by a higher and better title, the Court of Bankruptcy ought to decide the questioo itself. Jessul, M.R., said that after the decision in Ex parte Armitage (L. R. 17 Ch. D. 13), it must be held that section 72 enabled the Court of Bankruptcy to^try all cases of tbig kind itself if it was desirable to do so. But the court had a discretion whether it would try them or not, and the mode in which that discretion ought to be exercised was fairly pointed out in Ex parte Armitage. In the present case there was an allegation of gross fraud against, tbe father and the son—viz., that they conspired together to sell the property to the father in order to obeat tbe creditors of tbe son. Property worth £500, and questions seriously affeoting character were involved. The father, who was not a bankrupt, and who was not direotly amenable to the jurisdiction of the Court of Bank ruptcy, desired that the question should not be tried in the oounty court, but by the ordinary tribunals, where it would be tried by a judge of high rank, and there would be a jury of twelve men (instead of only five), and he could have the assistance of a higher class of counsel. Was this an unreasonable objeotion? Ought the oourt to oompel the father to submit to the jurisdiction of the county oourt in a case in which the amount at stake waB so muoh beyond the ordinary jorisdiotion of a county oourt, except in bankruptcy matters, and Buoh serious questions of oharacter were involved p The judge of the oounty court appeared to have thought that he had no discretion in the matter, and not to have exeroised any. Therefore there was nothing in tbe objeotion that the Chief Judge had interfered with the exercise of discretion by the oounty court judge. His lordship thought that the Chief Judge had oome to a right conclusion. Beett, L.J., said that, assuming that the objection to tbe deed arose only under the Statute of Elizabeth, he thought that the Court of Bankruptcy had jurisdiction to try tbe question, and tbe only ground on whioh the order of the oounty court judge could be interfered with was that be bad a discretion which he did not exercise. If the matter in dispute had been of small amount—say, under £50— his lordship should ha7e thought that the oourt ought not to interfere with the discretion of the oounty oourt judge, if he had exeroised it by saying that he would try the case himself. In the same way, if tbe amount in dispute had been a large one in a case within the district of the London Bankrnptoy Court, and the Chief Judge had said that he would try it himself with a jury, his lordship would not have been inolined to interfere. He thought the oase would not stand on any different footing if the allegation was that the deed was void, not under the Statute of Elizabeth, but as a fraudulent preference. No doubt the faot that the allegation of fraud was made under the Statute of Elizabeth had something to do with the question whether the jurisdiction should be exeroised, but his lordship did not wish to preolude himself from saying that, even if the question to be tried was one of fraudulent preference, it might not be right, if the party objeoted, that it should not be tried in the Court of Bankrnptoy. But here there was a oharge of personal fraud, and the father objeoted to have a question affeoting his oharaoter and his right to property worth £500 deoided in a oounty oourt, not from any personal objeotion to the judge, but because he wished to have the case decided by a jury of twelve of his oountrymen under the superintendence of a judge of the High Court. Moreover, if it was tried in that way, it would be tried at tbe assizes by a jury of neighbours of bis own who knew his oharaoter. This was of immense importance to him, if he was an honest man, and it would be a strong thing to deprive him of this right. Ex parte Armitage was a direot authority for such a case. Cotton, Tj. J., concurred.—Solicitous, W. W, Wynne <fc Son; Vllithorne, Currey, $ Villiert.
Bill Op Sale—Statement Op Consideration—Registration—Appidavit —Explanation To Geantor—Bills Op Sale Act, 1878, as. 8, 10.—In a case of Ex parte Bolland, before tbe Court of Appeal on tbe 27th ult., a question arose as to the statement of consideration in a bill of sale, and there was the further question whether the affidavit which has to be filed on the registration of a bill of sale ought to contain a statement that the effect of the deed has, before its execution, been explained by the attesting solicitor to the grantor. Section 8of the Bills of Sale Act, 1878, provides that "every bill of sale to which tbis Act applies shall be duly attested and shall be registered under tbis Act within seven days after the making or giving thereof, and ehsll set forth the consideration for which suoh bill of sale was given," otherwise the bill of sale is to be void as against a trustee in bankruptcy of the grantor, unless apparent possession of the property is taken by the grantee before the filing of the bankruptcy petition. Section 10 provides that "a bill of sale shall be attested and registered nnder this Act in the following manner :— (1) The execution of every bill of sale shall be attested by a solicitor of the
Supreme Coort, and the attestation shall state tbat before the execution of the bill of sale the effect thereof has been explained to tbe grantor by the attesting 6olioitor. (2) Such bill, with every schedule or inventory thereto annexed or therein referred to, and also a true copy of suoh bill and of erery such schedule or inventory, and of every attsstation of the execution of suoh bill of sale, together with an affidavit of the time of such bill of sale being made or given, and of its due execution and attestation, and a description of the residence and occupation of tbe person makiug or giving the same . . . and of every attesting witness to such bill of sale, shall be presented to, and the said copy and affidavit eh ill be filed with, the registrar within seven clear days after the making or giving of such bill of sale." The questions arose thus :—In October, 1879, Roper agreed to purchase a leasehold brewery from Booth for £2,500. An assignment to Rop;r was executed, dated the 21st of October, 1879, by which Booth acknowledged the receipt of the £2,500. In fact, only £500 was paid by Roper, it being agrjed tbat the balance of £2,000 should remain on the security of a mortgage to Booth of the property, and a bill of sale to him of the stock-in-trade and other loose chattels and effects in the brewery belonging to Roper. This mortgage deed was executed immediately after the assignment, and was dated the 22 nd of October, 1879, and it was expressed to be made in consideration of £2,000 "paid by the grantor to the grantee immediately before the execution of these presents," the receipt whereof the grantor did thereby acknowledge. No part of the £2,000, in fact, pa«sed between the parties, but it was the balanoe due to Booth upon the purohase of tbe brewery. The execution of this deed by Roper was attested by a solicitor, and the attestation clause stated that, before the exeoution, the effeot of the deed was explained by the solioitor to Roper. The deed was registered under the Bills of Sale Aat, the affidavit filed on the registration being made by the attesting solicitor. The affidavit stated that the deponent was present and saw Roper sign and execute the deed on tbe 22od of October, 1879, but it did not state that the effeot of the deed was explained to him by the solioitor before he executed it. R >per filed a liquidation petition in the Liverpool County Court in August, 1880, and the trustee in the liquidation applied to the oourt to deolare the mortgage deed void as against him, as regarded the chattels oo.nprised in it, on the grounds (1) that the consideration for the deed was not truly stated in it; and (2) that the affidavit ought to have seated that the effeot of the deed was explained by the solioitor to the grantor before he exeouted it. The oounty oonrt judge held that the deed was void against the trustee on the latter ground. Bacon, C.J., reversed the decision, holding that neither objeotion was tenable. Tbe Court of Appeal (jbssel, M.R., and Brett and Cotton, L.JJ.) affirmed the deoision of the Chief Judge. Jesskl, M.R., thought that both points were covered by previous decisions. As to the first point, the consideration stated in the bill of sale was £2,000 paid by the grantor to the grantee immediately before the exeoution of the deed. What did these words mean, having regard to the foots? The grantor owed the grantee £2,000, part of the purohase-money of the leasehold property. He had paid him £500 in oash, and he gave him the bill of sale as seonrity for the balanoe of £2,000, and this was acospted by the grantee instead of payment. Was tbis in law a payment of the £2,000 by the grantor to the grantee? His lordship had no doubt that it was, or that it would support a plea of payment in an action. It was not necessary that anyone should attend with the £2,000 in bank-notes or sovereigns, and that they should be handed over and then handed back. When the transaction was a bond fiie one sujh an arrangement had always been held to be a payment. And Ex parte ChalUnor (29 W. R. 205, L. R. 16 Ch. D. 260) was au express decision of tbe Court of Appeal, which had been since recognized, that such a mode of payment was a payment, and was properly so described. As to the other point, the word " attestation" in sub-section 1 of section 10 of the Act meant the " attestation olause," and that sub-section provided that the same clause should state the faot of attestation, and also the fact of explanation. The explanation was no part of the attestation ; it was to take place before the execution of the deed. Then, in subsection 2, the word " attestation" meant the attestation itself, and what was required was an affidavit of the attestation—that is, that the deed was signed, sealed, and delivered in the presence of the attesting witness. The words of the Aot, therefore, were satisfied by the affidavit made in the present case. It was suggested that the affidavit should go on to say that before the execution the deed was explained by the solicitor to the grantor. But there was no such provision in the Act, and it would be wholly unnecessary, for a copy of the attestation clause must be filed on the registration and could be seen by any creditor of the grantor. Indeed, the very point was decided by this court in Ex parte National Mercantile Bank (28 W. R. 848, L. R. 15 Oh. D. 42), in which it was held that the Act did not require that any actual explanation should be given to tbe grantor, but only that the attestation clause should state that an explanation had been given. That could not be so if it was necessary that there should be an affidavit that the explanation was given. The present argument was wholly inconsistent with the decision in that case. Brett, L.J., said that what took place in tbe present case would be said by any man in business, and would be held in any oourt of law, to be a payment of £2,000, and if it was necessary to plead payment in an action, the plea would be proved by that which had taken place. As to the other point, it was decided by the very words of tbe Aot. The exeoution of the bill of sale was to be attested by a solicitor, and when section 10 said tbat the " attestation" should state tbat, before the execution of the deed, its effect had been explained to the grantor, it must mean that the attestation clause should state this. Tbe explanation could not be part of the execution, which was the thing to be attested. Then sub-section_ 2 said th it there was to be an affidavit of the "due execution and attestation" of the deed—i.e., of the fact, not of the clause, of attestation—that the person who attested was present and saw the deed executed. In order to support the present argument, sub-section 2 ought to require that the affidavit should state that,