Stovell, Edwin, Goswell rd, Chemist. Aug 10 at 3 at offices of Palmer, Adelaide place,
London Bridge. Chinery and Co, Fenchurch st

Swaby, Frederick Richardson, Lincoln, Joiner. Aug 9 at 11 at offices of Andrew, Silver
st, Lincoln

Tandy, Edward, Leicester, Boot and Shoe Maker. Aug 17 at 12, at office of Gee and
Parr, Gallowtree gate, Leicester

CONTENTS.

CURRENT TOPICS........

625

Re The Gloucestershire Banking

Company

634

In re Clark

Rippingall v. Rippingall and Lockhart......

634

631

630

LEGAL APPOINTMENTS

636

Taylor, Kendrick, Brackley, Northampton, Butcher. Aug '18 at 11 at Crown Hotel,
Brackley. Barnes, Brackley

Thompson, John Robert, Richmond crescent, Barnsbury, Butcher. Aug 10 at 3 at
Essex Arms, Brentwood. Lewis, Mincing lane

Tildeslev, David, and Alfred Hailey, Irongate Wharf, Paddington, Ironmongers. Aug
28 at 2 at Guildhall Tavern, Gresham st. Yeo and Warner, Finsbury pavement
Towne, George, Melton Mowbray, Leicester, Butcher. Aug 11 at 3 at office of Gee and
Parr, Norman st, Melton Mowbray

Turpin, John, Dunstable, Bedford, Straw Plait Dealer. Aug 18 at 11 at King st, Luton.
Scargill

Vickerman, William, and James Cape Vickerman, Lowthorpe, York, Corn Millers.
Aug 16 at 3 at Black Lion Hotel, High st, Bridlington. Richardson, Market pl, Brid-
lington

Waddington, William, Padiham, Lancaster, Cotton Spinner. Aug 12 at 3 at Mitre Hotel,
Cathedral yd, Manchester. Leigh, Manchester

Webster, John, Martin, nr Bawtry, Notts, Farmer. Aug 11 at 11 at Crown Hotel,
Bawtry. Singleton, Bradford

West, Thomas, Paddington st, Fruiterer. Aug 15 at 3 at office of Watson, Southampton
bldgs, Chancery lane

White, James, St John in Bedwardine, Worcester, Painter. Aug 14 at 11 at office of
Griffiths, Sansome pl, Worcester

Whitwam, Sarah, Harden Beck, nr Bingley, Grocer. Aug 14 at 11 at office of Atkin-
son, Dale st, Bradford

Wood, Percy, Pall Mall, Tobacconist. Aug 14 at 3 at Guildhall Tavern.
Birchin lane

Foster,

Woodrow, William, Edgware rd, Carriage Salesman. Aug 23 at 2 at office of Brighten,
Bishopsgate st Without

Wotherspoon, Alexander Watson, Carlisle, Confectioner.
Wannop, Scotch st, Carlisle
Young, William, Keane ter, West Kensington, Stationer.
Jones and Julius, Finsbury circus

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In re The Exchange Banking Com-
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Ex parte Harper.
.......................................

Ex parte Price .......

Ex parte Bolland

632 CREDITORS' CLAIMS .................. 637 LEGISLATION OF THE WEEK 637 LONDON GAZETTES, &C., &¤............................. 638

..............

632 633

Re The Royal Dramatic College 634

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CURRENT TOPICS.

LONDON, AUGUST 12, 1882.

WE PUBLISH elsewhere an order, dated on Thursday last, retransferring to Mr. Justice FRY the causes and matters which during that learned judge's absence on circuit were transferred to Mr. Justice KAY.

Mr. JUSTICE NORTH will sit in the court of Vice-Chancellor HALL on Wednesday, the 16th inst. We believe that his lordship's list will contain a large number of petitions in addition to the usual batch of motions. It appears to be more than probable that it will be found necessary for the Vacation Judge to sit on two days in the week.

THE FIRST INSTALMENT of the classification of clerks in the legal offices, to which we referred last week as imminent, appears in the Gazette in the shape of three orders, the first of which relates to the Central Office, and the other two to the Probate, Divorce, and Admiralty Division. All the clerks who are not principal clerks are divided into three classes. The first class begins at a salary of £500, rising by annual increments of £20 to £600; the second class begins at a salary of £250, rising by annual increments of £15 to £400; and the third class begins at £100, rising by annual increments of £10 to £200. The completion of this classification will form an important step towards the result which it is desired to accomplish, of making future clerks of the lower grades interchangeable, so that one department may borrow clerks from another in case of pressure of work.

use.

cause considerable

ex

THE REPORT of the Gloucestershire Law Society calls attention to a matter which we think deserves careful attention. No conveyancer can have failed to observe the rapidly increasing stringency of conditions of sale. Conditions which, ten years ago, would have been thought too depreciatory to be inserted except under special circumstances are now used almost as a matter of common form. The condition throwing on the purchaser the expense of stamping any unstamped or insufficiently stamped "if any such there be, which, however, is not known to be the document of title was originally accompanied with the statement, case," or at all events with a restriction as to the age of the docucommonly omitted, with the result that the purchaser may ments referred to. This statement or restriction is now very find himself burdened with the cost of stamping, and penalty condition of rapid recent growth is that which requires the on stamping, of documents of essential importance. Another purchaser on completion to pay to the vendor the whole of the rents for the current half-year, leaving him to collect them from the tenants when they become due. There are practitioners in some parts of the country who invariably adopt this condition, no doubt to the great satisfaction of their clients; but it may be questioned whether the purchaser fully considers that the vendor thus gets a considerable addition to the purchase-money, and that the purchaser may never succeed in recovering the rents. The condition throwing on the purTHE JUDGMENT of Lord COLERIDGE in Re Wilkins, Blyth, & chaser the expense of everything necessary to complete the Fanshawe appears to afford a very important caution to solicitors. vendor's title is of older date, but is coming into more extensive The practice of employing a shorthand writer in important cases It is obvious that it may has become nearly universal, and the risk revealed by the recent pense to the purchaser. These conditions, however, are intellicase-in which Lord COLERIDGE refused to interfere with the dis-gible to a careful purchaser, and if he chooses to buy under cretion of the master who struck out the costs of the shorthand them he has no one to blame but himself. But there are other writer on a taxation between a solicitor and his client of the extra conditions the object of which is not obvious to the purchaser, costs of a proceeding-will probably startle many of our readers. and which may be intended to conceal grave defects of title; Seeing that these costs are always heavy and consist of payments for instance, the condition making recitals in any abstracted out of pocket, solicitors will do well to take specific instructions deed conclusive evidence, and precluding the purchaser from in writing on the subject from their clients. Even where it is requiring the production for any purpose of documents of probable that the court will allow the costs of taking and tran- title not in the vendor's possession. It is natural enough that scribing shorthand notes as against the other side, this a vendor's solicitor should do his best to save his client's precaubut purse, tion is not unadvisable. In the recent case the costs of the it is another question whether it is to the interest of the public or shorthand writer are stated to have amounted to £524. the profession that great cost and risk should be thrown on the purchaser; and when we come to consider common form conditions of sale prepared for use by all the solicitors within a particular district, very different considerations come in. Here the point to be aimed at seems to be a fair adjustment of the expenses between vendor and purchaser. It cannot be to the advantage of practitioners in a district that purchasers should always be burdened with every expense connected with investigating and deducing title. Common form conditions which achieve this object place the purchaser's solicitor in this difficulty. He is bound to get as good a title as he can for his client, yet at every step he has to tell him, "I think this is necessary, but then you will have to pay for it," and when the bill of costs is sent in, the client is very apt to be dissatisfied with his solicitor. We think that the Gloucestershire Law Society are right in objecting to these stringent provisions in common form conditions, and we shall be glad if the same views are adopted by other law societies.

A BILL which has been read a third time in the House of Commons proposes to provide that "So much of section 91 of the County Courts Act, 1816, as is still in force is hereby repealed, and the following provisions shall from and after the passing of this Act take effect in lieu thereof, that is to say: No person other than a solicitor of the Supreme Court shall be entitled to have or recover any fee or reward for appearing or acting on behalf of any other party in any proceeding in a county court." The section referred to is that which commences by providing that "no person shall be entitled to appear for any other party to any proceeding in any of the said courts, unless he be an attorney of one of her Majesty's Supreme Courts of Record, or a barrister-at-law instructed by such an attorney on behalf of the

"MARRY EARLY AND MARRY OFTEN," seems to be the best course language, and he finds that they amount to 5,232 volumes, of which to adopt for one who would commit the offence of bigamy, without 2,944 are American reports. Surely this should convey a solemn running the risk of punishment. This was first brought out con- lesson to the editors of the Law Reports, which add so many spicuously in the case of Reg. v. Willshire (L. R. 6 Q. B. D. 366), volumes each year to this enormous number. The tendency is always and another illustration of it has just come to light at the Devon Sum- to report too many rather than too few cases; to fill pages with mer Assizes. JOHN MICHAEL APSE ALLEN was indicted for marry-prolix reports of arguments which might be compressed into a ing ELIZABETH BLACKFORD, his former wife MARY ANN ALLEN, few lines, or, on the other hand, to give strings of cases in lieu formerly HODDER, being alive. The prisoner, when before the of reports of arguments. But the tendency which seems at magistrates, had made a statement to the effect that he was first present to be most marked in certain volumes of the Law married to AMELIA GREATHEAD, who died in 1845, leaving him Reports is to interlard the statement of the argument of counsel with four children; that he next married MARY ANN ROSE, at with observations of the judges. For instance, counsel cites a St. James's Church, Longfleet, Poole, in 1847; that MARY ANN case, and we have the observation [JESSEL, M.R.-That was not ROSE, his second wife, was subsequently tried at Winchester for a bill for discovery, but to establish an equitable title.] Counsel larceny, and sentenced to nine months' imprisonment, after which cites another case. [JESSEL, M.R-That was a case between she took a fancy to another man, and a regular "agreement" landlord and tenant.] What possible use to any reader can was drawn up in writing between the husband and this man, observations of this kind be? Everyone can find out for himself whereby he (the husband) assigned his wife to her new admirer, what the judge states. Observations thrown out by the court for the not exorbitant sum of five shillings. Shortly after, in during the argument are usually more or less tentative, and ought 1854, he was married a third time, to one MARY ANN HODDER, rarely to be set forth in reports as considered opinions. The and she having obtained a magistrate's protection order in 1878, babble of the bench should not go beyond the walls of the court. on account of his ill treatment, left him and lived apart. Then in June 1882, he solaced himself by taking to wife ELIZABETH BLACKFORD. For the defence his married daughter, MARY ANN DALE, issue of the first marriage, was called, and stated that she recollected her mother's death, when she was about six years old, and the subsequent marriage of her father to MARY ANN ROSE. She could recollect it because there was a great festival." Some time after this her stepmother was imprisoned at Winchester, and her father subsequently married MARY ANN HODDER. She had seen MARY ANN ROSE several times after her father's marriage with MARY ANN HODDER. Counsel for the defence produced no certificate of the marriage with MARY ANN ROSE, and the prosecution had made no attempt to ascertain whether this alleged marriage had really taken place. Upon this LOPES, J., said that he considered it incumbent upon the prosecution, having this definite information, to take steps to find out whether the marriage had really taken place, as it was the duty of the prosecution to satisfy the jury, beyond reasonable doubt, that the offence had been committed. He considered that it was clearly proved that MARY ANN ROSE was alive at the time of the marriage of the prisoner with MARY ANN HODDER. The prisoner was acquitted. In future, therefore, when such a defence is raised, the prosecution will do well to thoroughly sift the alleged previous marriages, and not to rely upon two conflicting certificates of marriage alone as sufficient.

66

THE DEFINITION OF A "LODGER." THE question, What constitutes a "lodger"? has again been brought before the courts; not this time in relation to the franchise, but to the meaning of the term "lodger" in the "Lodgers' Goods Protection Act, 1871," which protects the goods of a lodger from distress for rent. The courts have, in most of the cases on the subject, despairingly confessed their inability to define a "lodger." Generally when a judge of the Queen's Bench Division finds a question very difficult to solve satisfactorily, he seeks refuge in the conclusion that it is a question of fact for a jury or other tribunal having to decide the facts. The tendency being now-a-days in the direction of throwing the decision of questions of fact upon the judge in more cases than formerly, this ancient device is becoming less frequently available, but still many instances occur in which it can be applied. The case of Ness v. Stephenson (L. R. 9 Q. B. D. 245) was one of these. The facts were as follows:-The appellant had let a house, the ground floor of which was a shop, to one Tomlinson. The respondent rented the house, with the exception of the shop, from Tomlinson. There was no front door to the premises other than the shop-door, but there was a back door to the house. The respondent took in lodgers and provided all the furniture used in her premises. Neither Tomlinson nor any servant or agent of his lived or slept SOME INTERESTING DECISIONS upon the exercise of a morton the premises. He used the shop as an auction room, and gagee's power of sale have been recently reported. In one of the occasionally let it for balls or dancing parties in the evening. No latest (Martinson v. Clowes, 30 W. R. 795) the question was auction had been held for fifteen or eighteen months before the whether the mortgagee's known agent, so employed in the matter distress, but balls had occasionally been held there during that of the sale, could buy upon his own account at the auction. Mr. period. There were some articles of trifling value belonging to Justice NORTH held that the case was within the mischief of the Tomlinson in the shop, but he had not actually used the shop for rule which forbids the mortgagee or his solicitor to bid-namely, any purpose, except as before named, during the fifteen or eighteen that outside bidders might be deterred; and set aside the sale. In months preceding the distress. The respondent had access to her another case (Bettyes v. Maynard, 30 W. R. 792) Mr. Justice premises by the back door at all times, and through the shop when KAY had to deal with a more complex set of facts; and the it was open, and at her request Tomlinson also permitted her to decision went, to a great extent, upon all the circumstances taken have a key of the shop, and to use the shop-door as a front together. The case, however, touched one curious point on which entrance to her premises when the shop was closed. The respondthere is some earlier authority-namely, whether a sale by a mort-ent used to clean the shop and act as caretaker. The appellant gagee could be supported, where the whole or the bulk of the pur- had distrained on the respondent's furniture in the house for rent chase-money was allowed to remain unpaid on mortgage of the due from Tomlinson, and the question was whether the respondent property. It seems that this circumstance may help materially in was a lodger within the meaning of the "Lodgers' Goods Protecshowing the sale to be oppressive and improper as regards the tion Act," and her furniture, therefore, protected under that Act. mortgagor, but is not in itself conclusive. In Thurlow v. The justices held that the respondent was a lodger. The court, Macheson (L. R. 4 Q. B. 108) the judgment of LUSH, J., suggests on a case stated, held that the question was one of fact for the that so long as there is a real sale-i.e., divesting of the property justices; that there was evidence for them of the conclusion at of mortgagee as well as mortgagor-the mode of completion by which they had arrived, and consequently that their decision must arranging to leave the purchase-money on mortgage is immaterial. stand. That view seems not to give the circumstance all the importance it deserves.

AN INDUSTRIOUS AMERICAN LAWYER has been computing the number of volumes of reported decisions printed in the English

The effect of this kind of decision is worthy of observation. It is almost impossible to make the lay mind understand the distinction between questions of law and of fact as drawn by our judges. The distinction is, undoubtedly, one that must be drawn, but as applied in certain cases it may be questioned whether it is not rather artificial and intangible. There are, what may be called,

mixed questions of law and fact; questions which a judge may, and often does, treat as questions of law practically, but which may, no doubt, be treated as questions of fact. In the Chancery Division, where the judge is judge both of law and fact, such questions are treated as questions of law, and the chancery reports are full of cases which a common law reporter would, perhaps, hardly have reported. It is impossible to make justices of the peace understand that the decision of a court only amounts to saying that there was evidence, not that the court would have found in the same way on the facts. Though the judges, finding a difficulty, or, perhaps, differing, seek refuge in saying that the question was one of fact, and that there was evidence both ways, the justices of the peace will certainly treat the decision as one of law, and in all subsequent cases where the facts are similar will decide the same way.

66

says

distress, though there is no practical distinction between their position and that of the respondent in Ness v. Stephenson. These results seem to be absurd, and it is therefore not wonderful the judges should not be astute to narrow the definition of a "lodger " for the purposes of the Act, but in cases relating to the franchise different considerations altogether come into play.

CASES OF THE WEEK.

PRACTICE-INTERROGATORIES-LIMITED COMPANY-MEMBER OR OFFICER OF COMPANY-ORD. 31, R. 4.—On the 29th ult., the Court of Appeal (JESSEL, M.R., and COTTON, L.J.) affirmed the decision of Chitty, J., in a case of The Manchester Val de Travers Paving Company v. Slagg and The Val de Travers Asphalte Paving Company (noted ante, p. 599). An order had been made in chambers that the secretary of the defendant company should answer some interrogatories delivered by the plaintiffs. The plaintiffs moved that the order should be discharged, and that, in lieu thereof, one Marriott, who was a director of the defendant company, or some other officer of that company, or other person who had cognizance of the business matters of that company, might be ordered to answer the interrogatories. Marriott held fifteen shares in the defendant company, and held 300 shares of an equivalent value in the plaintiff company, and he was personally interested in the transactions which were in question in the action. Chitty, officer to give the discovery, but that still a director might be called on to J., said that, prima facie, the secretary of the company was the proper give it. Here, however, Marriott, though he was a director of the defendant company, had an interest adverse to their success in the action, and under the circumstances, his lordship thought that the principle of Berkeley The Standard Discount Company (28 W. R. 125, L. R. 13 Ch. D. 97), applied, and that Marriott was not proper person to make the discovery. view of the case. -SOLICITORS, Bolton, Robbins, & Busk; Drake, Son, & The motion was accordingly dismissed. The Court of Appeal took the same Parton.

This decision will, doubtless, be frequently cited in the revision courts, but we cannot think it entitled to much weight as an authority in relation to registration cases. The operation of the law of distress upon the goods of third parties, such as undertenants, has always been regarded as involving the possibilities of great hardship. We cannot help doubting whether, in dealing with the cases that have arisen as to the meaning of the term lodger" under the "Lodgers' Goods Protection Act," the judges have not been largely influenced by considerations of that sort. We cannot help thinking that, if the hardship of the law of distress were put out of sight, or in cases of a different kind where the definition of the same term is involved, it would be doubtful. how far the view taken in Ness v. Stephenson would prevail. It is, no doubt, difficult to frame a definition of a lodger, but it seems to us that, according to the decision, the idea of the term involves that the lodger should lodge or be an inmate in the household of another. The attempts at definition by the judges in the registration cases are not really of much service, for they all of them involve terms equally uncertain with that of "lodger," but they seem to come to that. Cotton, L.J., in Bradley v. Baylis (L. R. 8 Q. B. D. 195), says, "that a lodger is a man living in a house owned by or leased to another person and, to some extent, living there with that other person." Lindley, L.J., that the word a "lodger" denotes a personal relation of someone lodging somewhere with somebody. Huddleston, B., in giving ment in Ness v. Stephenson adopted these formule, and said that he thought that the respondent was living in Tomlinson's house and to some extent living there with him, and that there was a personal relation such as was suggested by Lindley, L.J., of someone lodging somewhere with somebody. It does seem to us, we must say, that it was very difficult on the facts to say that the respondent lived with Tomlinson. Tomlinson did not live on the premises at all, so far as we can see. It may be that in cases where the landlord either actually lives in the house or constructively lives there by reserving a room which he may occupy as a residence or which he occupies by a servant, the occupier of the rest of the house may be called a lodger. But here Tomlinson only occupied a shop, and did not either by himself or his servant occupy any part of the premises as a residence. Possibly the same test is not applicable in the case of a distress and under the acts relating to the franchise. In any case it does not seem to us that the case is a very reliable authority with regard to the lodger franchise. We apprehend that Tomlinson certainly did not occupy the premises as an inhabitant householder, which would be the case if he resided there. It does not seem to us that he really occupied anything but the shop for the purposes of the franchise.

BANKRUPTCY-WITNESS-JURISDICTION TO Order DeliVERY OF ACCOUNT -BANKRUPTCY ACT, 1869, ss. 96, 97.-In a case of Ex parte Reynolds, before the Court of Appeal on the 3rd inst., a question arose as to the jurisdic tion of the Court of Bankruptcy under sections 96 and 97 of the Bankruptcy Act, 1869. Section 96 enables the court, "on the application of the trustee, at any time after an order of adjudication has been made against a bankrupt, to summon before it the bankrupt or his wife, or any person whatever known or suspected to have in his possession any of the estate or effects belonging to the bankrupt, or supposed to be indebted to the bankrupt, or any person whom the court may deem capable of giving information respecting the bankrupt, his trade dealings or property, and the court may require any such judg-persou to produce any documents in his custody or power relating to the bankrupt, his dealings or property." And, by section 97, "the court may examine upon oath, either by word of mouth or by written interrogatories, any person so brought before it in manner aforesaid, concerning the bankrupt, his dealings or property." In the present case the brother of the bankrupt was summoned for examination under section 96, and in the course of his examination it was suggested by the trustee's counsel that he should furnish to the trustee an account of all moneys and shares received by him from the witness expressed his readiness to do this, and the examination was adjourned bankrupt, and of all his monetary transactions with the bankrupt. The to enable him to do so. At the adjourned examination he produced an account with which the trustee was not satisfied, and on his application the registrar made an order that the witness should, within fourteen days, furnish to the trustee a full account of moneys received by him from the bankrupt or each sum so received, "the person from whom and the date when received, from any other person or persons for him or on his behalf, with full details of and whether by cash, notes, or cheque, the date of any moneys being paid into the bank, and the name of the bank; also an account of all stocks, shares, or securities of any kind received by the witness from the bankrupt, or And the any other person or persons, with full details of and as to the same. examination was adjourned for a month, when it was ordered that the witness should attend again and produce his pass-books, cheque-books, paying-in slips, and any other books, papers, or memoranda showing the monetary transactions between himself and the bankrupt. The witness furnished another account to the trustee, but the trustee was still not satisfied, and the registrar made another order for the delivery of a further and better account, for whic purpose the examination was again adjourned. The witness then attended and stated on oath that he could not render a better account than that which he of a further and better account, and from this order the witness appealed. had already furnished. The registrar then made a third order for the delivery The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.), discharged the order, on the ground that there was no jurisdiction to make it. JESSEL, M.R., said that the witness had given no formal undertaking which could be enforced in this way; his verbal undertaking given on oath could not be enforced by the order of the court. The only remedy of the trustee was to go on examining the witness. The witness could be examined on oath by means of written interrogatories as to the matters about which the trustee desired information, but there was no jurisdiction to compel him to furnish an account in writing not on oath.-SOLICITORS, G. S. & H. Brandon; Bellamy, Strong, & Baker, AFFIDAVIT

The law of distress is left by the "Lodgers' Goods Protection Act" in a most anomalous state. The goods of the lodger are protected, but those of an under-tenant are not. It seems impossible to justify this in theory. If a house is altogether let out in lodgings except a shop or one garret without any furniture in it, the landlord has nothing available for a distress. If the whole of the premises are underlet to one person the landlord can distrain on the under-tenant's goods. Again, if the premises are altogether let out in different sets of lodgings, the landlord retaining no room or right of interference amounting to a constructive occupation of any part of the premises, then it would RIGHT TO WITHDRAW-CROSS-EXAMINATION-15 appear that the goods of all the under-tenants are subject to VICT. c. 86, s. 40-ORD. 37, R. 4.—In a case of In re The Quartz Hill Con

& 16