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LONDON, OCTOBER 28, 1882.
time, and took occasion to point out certain limits to which it CURRENT TOPICS.
must be considered subject. A case has lately been decided which
exactly confirms the view which we suggested as the correct one MR. JUSTICE PEARSON attended at Judges' Chambers on Wednes
--viz., Reg. v. Lee (L. R. 9 Q. B. D. 394). We pointed out that day, and made several orders both in the Chancery and Queen's although the mere fact that the justice was a member of the
prosecuting authority would not disqualify, yet it must not be Bench Divisions.
supposed that a member of the prosecuting authority who had
actually taken part in initiating the prosecution could afterwards THE ROYAL COMMISSION on the Ecclesiastical Courts will, it is sit as judge in the case. It has been held in the case to which we understood, intermit their sittings for a time owing to the illness allude that where a justice was a member of the sanitary committee of the Primate. We have reason to believe that the report of the of the town council who authorized the prosecution, he could not Commission is not likely to be presented for several months to sit to hear the case. This decision is a very obvious one ; it
would be monstrous if it were otherwise, but it is, perhaps, just as
well that this decision should have authoritatively prevented any A MEETING of the Rule Committee of Judges was held on misconception as to the true limits of the doctrine of Reg. v. Monday last to consider the proposed new Rules of Court con
Handsley. sequent upon the Report of the Legal Procedure Committee. We believe, however, that there is no prospect of the new rules being
CODIFICATION, now begun in earnest with the new Bills of brought into operation until after the meeting of Parliament next Exchange Act, must always raise the difficult question of how year.
far the existing law, when subjected to the process of codification,
should be amended. The Bills of Exchange Act is no exception WE PUBLISH elsewhere an order, dated Tuesday last, trans- to this rule. From many quarters notes of disapproval have been ferring Mr. Justice Kay's list of causes to Mr. Justice Pearson, sounded, and not without reason has complaint been made that the for the purpose only of trial or hearing. It will be observed that so-called “ days of grace” have been retained. It would, perhaps, no writs are to be marked for the latter learned judge, who, have been too much to expect that in a codifying measure the now to adopt a phrase used by Mr. Justice Fry when occupying the purely formal and rigid“ days of grace" should have been wholly same position, will " live on transfers only."
expunged, but there is one modification of the existing law which we might reasonably have looked for, and that is a simplification
of the rule as to the day of payment of bills, when the day fixed WE BEPORT this week two cases of forging deeds by solicitors' for payment falls upon a dies non. Unfortunately, however, the clerks, which will recall to our readers' recollection the DIMSDALE law has been left in its old confusing state. When the day of and Downs frauds in 1878. In non-register counties this is payment falls upon a Sunday, Christmas Day, Good Friday, or a very tempting form of crime, and it is unfortunately difficult to public fast or thanksgiving day, the bill is payable on the presay how, under present conditions, it can be effectually guarded ceding day, and when the day of payment falls on a bank holiday, against. It will be remembered that in the DIMSDALE case, the or the last day of grace is a Sunday, and the second day of grace forgery was discovered by the care of a solicitor who examined is a bank holiday, it is payable on the succeeding day: 45 into the accuracy of the descriptions of the attesting witnesses to & 46 Vict. c. 61, s. 14, sub-section 1. But in Scotland the rule the deeds; and Downs had the impudence to attempt to excuse as to payment is more confusing still, owing to the complication himself before the magistrate on the ground of the ease with arising from Christmas Day and Good Friday, hitherto “ bank which the money was obtained on the forged deeds, for which he holidays” across the border, being promoted by this Act to the considered the solicitors of the mortgagees to blame. But it is other class of holidays-namely, those which necessitate the prepractically impossible, in the pressure of daily work, to make the payment instead of the post-payment of bills which fall due on minute and anxious investigations which led to the discovery of those days. We should have supposed that the presence of pracDIMSDALE's fraud. The only practical remedy is a general system tical business men upon the committee which sat to consider the of registry of deeds, and the report of the Land Transfer Com- new Bills of Exchange Act, would have led to one general simple mittee of 1879 showed that this protection against fraud might and easily remembered rule being adopted for the payment of bills be afforded without the evils of delay and expense which have when payment falls upon a blank day. brought the system, as practised in Middlesex, into discredit.
RECENT LEGISLATION has tended in the direction of leaving to THERE HAVE BEEN RECENTLY several cases decided in which the discretion of the court or judge many points which formerly the question has been discussed, what amount of interest dis- would have been provided for by express enactment. Instances qualifies a magistrate for exercising jurisdiction in a case. One of of this occur in two Acts passed during the past session of Parliathese cases was Reg. v. Handsley (L. R. 8 Q. B. D. 383), where it ment. In the Bills of Sale Act (45 & 46 Vict. c. 43), s. 7, after was held that the fact that a justice of the peace for a borough, who giving power to grant relief in certain cases, the clause conis a member of the town council, has a pecuniary interest in the result cludes with a general power to the court or judge to make such of an information merely in the sense that the fine inflicted would go to order“ as may seem just.” In the Bills of Exchange Act (45 & the borough fund, or that the corporation of which he is a member 46 Vict. c. 61), s. 57, sub-section 3, it is enacted that where are the prosecutors, does not disqualify him from sitting. This interest is recoverable as damages, such interest may, “ if justice decision was one of considerable practical importance, as in require it,” be withheld. To the discretion thus conferred no boroughs so many of the justices are members of the town council reasonable objection can be made, but to the terms in which that if all such justices were disqualified ipso facto, great difficulty the giving of this discretion is worded a protest may fairly be would arise. The court took the sensible view that there must be entered. “ Justice is not what a particular court or judge may some substantial interest such as might be likely to create a real consider to be justice, for justice is not what A., B., C., or D. bias; that what may be called a scintilla of interest would not individually may regard as justice, but what A., B., C., and D. disqualify. We commented at some length on this decision at the collectively, and in the abstract, regard as justice. What may
seem just” to one man may not "seem just” to another, and ment (section 163, sub-section 7); whereas, under the old what one man may consider to be “justice," another may regard law, increase of salary necessitated a new appointment. The as positive injustice. The expressions “as may seem just,” and restriction of the numbers of the Watch Committee to one“if justice require it,” have been employed in these two Acts to third of the whole council (section 190). The power to amend do duty for the well-known expression “ as to the court or judge a "scheme" for a charter (section 218). The power of borough it may seem fit," a form of expression well established, and about constables to take bail by day (section 227). The provision that the meaning of which no shade of doubt could arise, conferring as no defect in the appointment of a deputy shall invalidate his acts it does a purely personal discretion from which there can be no (section 237). The provision that unless councillors actually vote appeal. But suppose a case to come before a judge having a at a meeting they are absent from it in law (schedule 2, rule 10). power to make a certain order “if justice require it," and suppose The provision that “where a person subscribes more nomination that the judge, as is easily possible, should take a harsh view of papers than one, his subscription shall be inoperative in all but the the matter before him, and make an order in accordance with the one which is first delivered” (schedule 3, part 2, rule 10). view he takes, can an appeal be entered on the ground that " justice” did not require such an order to be made ? Yet such a right of appeal ought strictly to follow, if expressions such as “ if justice require it are to be interpreted as if they were correctly THE NEW BILLS OF SALE ACT. employed. It seems, therefore, a pity that terms such as these,
1. savouring of theoretical rather than of practical jurisprudence, should be adopted, when other expressions more suitable, if To protect debtors and creditors at the same time from the disasters perhaps more prosaic, are equally available.
resulting to both from the impecunious condition of the former is an object not unworthy of a benevolent legislature. And it is the object of the Act which we have to consider. The purpose of
the original, but now repealed, Bills of Sale Act of 1854, was to The STATUTE LAW REVISION COMMITTEE prepared the Bill which protect the creditors of persons who, by remaining in possession has at length passed into the new Municipal Corporations Act so of chattels which they had assigned to someone else, were able to long ago as 1878, and it was introduced but dropped in four obtain a general credit to which their circumstances did not entitle successive sessions. It was intended to be a “pure consolidation them. The Act of 1878 (the greater part of which still remains Bill,” but a reference to "amendments” has been inserted both in the in force) further developed this policy, and except in so far as it title and the preamble. Of these amendments we will speak pre-contained a provision requiring bills of sale to be attested sently, but will first deal with the Act itself. As might be ex- by a solicitor, which was intended to prevent improvident assignpected, it is a very long one, containing 260 sections and nine ments, that Act had no other policy. But the new Act (“The schedules, the sections being frequently split up into numerous Bills of Sale Act (1878) Amendment Act, 1882"), is at least as sub-sections and the schedules into parts. All the Acts usually careful of the supposed interest of the debtor as it is of that of the known as Municipal Corporation Acts-except the Borough Funds creditor. It is, as we shall presently see, difficult to judge from Act, which is omitted, and rightly so, as being applicable to other the terms of the Act itself what precise object the persons who bodies besides municipal corporations are repealed. The phrase are responsible for its form and substance intended to accomplish ology and arrangement of the old statutes are entirely altered, and by it. Nevertheless it contains at least evidence of a general in very few cases is the exact language copied. With the excep- intention. That intention may be described as being, on the one tion of that portion of the Act which deals with elections, the con- hand, to fix once for all, in the interest of borrowers and to the consolidation has been admirably effected, the arrangement being fusion of money-lenders, the most important of the terms (other good, the language clear, and the headings well chosen. In deal- than the time of repayment and the rate of interest) upon which ing with elections, the plan of incorporation, or rather part money may be lent on the security of chattels, and to prevent incorporation, by reference, which made the old Acts often difficult any loans of sums below £30 upon such security. On the other to understand, has been too faithfully followed. The Parlia- hand, it seems to be intended, in the interest of general creditors, to mentary Registration Acts, the Ballot Act, the Parliamentary Cor- further develop the policy of the former Acts by invalidating, except rupt Practices Prevention Acts, are all, “ so far as applicable,” or as against the grantor, all mortgages of after-acquired property; with “ modifications,” read into the Act by indirect incorporation by increasing the publicity of registration through the establishand with no reference to particular sections. This is espe- ment of additional registers in the county court offices; and by cially confusing as regards corrupt practices, in relation to withdrawing the protection which the Act of 1878 gave to goods which, at municipal elections, the Act imposes penalties of its comprised in a registered bill of sale, so that they could no longer own. Turning to the amendments effected, they may be be treated, in bankruptcy, as in the order and disposition of the described as many and minute. They are of two classes, either grantor. In addition to these provisions, denoting a specific (1) affirming the results of cases, and so more clearly expressing policy in one direction or the other, are to be noticed the importwhat the courts had held to be implied before; or (2) making ant alteration effected by the Act in making void as against every new law altogether. Amongst the first class may be mentioned the one, or, in certain cases, as against every one but the grantor, affirmance of Reg. v. Mayor of Exeter (L. R. 4 Q. B. 114) by instead of as against special classes of creditors, bills disregarding the insertion of the words "joint or several” in section 9, where its requirements, and the new regulations for attestation by a qualification for enrolment by occupation of a house is dealt with; credible witness instead of by a solicitor. and of Stanford v. Keble (L. R. 9 Q. B. 549) by inserting “ local” With the merit or demerit of the policy of the Act we have no in section 136, which empowers trustees under Acts of Parliament, special concern. It is sufficient to point out that if the above to transfer their rights to municipal corporations. In no case description of the intention of the Legislature is correct, a new which we have been able to discover has a decision been reversed. departure of the utmost significance has been taken. No doubt it As to amendments of the second class, it must first be remarked might be argued that the object of the new Act is really identical that so great a change of phraseology and arrangement has been with the objects aimed at by the old, for that the provisions effected that only the most careful comparison of the new with apparently enacted in the interest of the borrower are, in reality, the old can justify an assertion whether a change is made or not. merely fresh attempts to prevent contracts which may injure We think, however, we are correct in stating the following pro- general creditors. But we need not discuss the point. Whether visions to be new, though the list is, of course, not intended to be these startling prohibitions against mortgages of chattels are to be exhaustive :—The requirement of a written resignation for a cor- ascribed to a care for the rights of general creditors, or to a porate office (section 36). The power of a town clerk to appoint paternal regard for the welfare of lodgers and small householders, à deputy (section 17). The prohibition of a room in any house it is clear that they involve a principle distinct in kind from any licensed for the sale of intoxicating liquors being used as a justice's hitherto applicable. To compel persons who have specific claims room (section 160), the former prohibition (section 100 of the against a trader or other debtor's goods to publish the fact, or to Act of 1835) applying only to a house licensed for the sale of prohibit specific claims against goods which were not his property liquor to be drunk on the premises. The allowing the salary of at the time he purported to charge them, is one thing. To forbid a recorder to be increased without resignation and re-appoint- | an owner of chattels to charge them at all when they are of small
value (which is the effect of the avoidance of bills when the con- clauses of its own (sections 8 and 10) requiring that “ sideration is under £30), or, where their value is greater, to allow of sale” shall be duly attested and shall be registered within seven him to do so only upon terms which may be fatal to his chance days after its execution, otherwise it shall be void (that is, void of raising money upon them, is a different matter altogether. Such absolutely instead of void as against special persons), and changes may be beneficial if their permanence can be relied upon. directing that the attestation shall be by one or more credible The small householder hereafter legally obliged to sell when in witness or witnesses not being a party or parties to the bill. Are want of money, may, perhaps, object to seeing his neighbour in we to disregard the words above quoted of section 3, and suppose his urgent want, and with no better credit, under no such legal that the new provisions as to attestation and registration are to obligation simply because the goods of the latter are rather more apply to all bills of sale, relying upon the fact that, in spite valuable. And the passions and influence of the small house its defining clause of its sections speak (as do holder have to be reckoned with in imposing any disabilities these sections 8 and 10) of “ every bill of sale," and others which suggest the least suspicion of class legislation. But, of a “bill of sale” given by way of security for money or a whether permanent or not, the new order of things created by the bill of sale to which this Act applies”? Or, are we to suppose Act is one of such wide-reaching effect upon the habits of the people that, although the old law is repealed without qualification, the that it might at least have been expected that it should be brought repeal is not to extend to documents which are not mortgages ? about by a clear and well-considered Act of Parliament.
Or, are we, finally, to give effect to every part of the Act, and It may be doubted, however, whether any statute has ever suppose that it was intended to abolish the old law entirely, and, compressed into such small compass so much inconsistent and whilst making new provision as to bills given by way of mortincomprehensible language as the new Bills of Sale Act which gage, to leave other bills subject to no regulation as to registracomes into operation on the 1st of November next. The question tion, or, in other words, to restore them to the position which of most immediately pressing importance with regard to it will be they occupied before 1854 ? Again, we can only say that it is that arising upon the words in section 3, declaring that the Act, impossible to tell. To make the new law generally applicable is “ unless the context otherwise requires, shall not apply to any to suppose that a man purchasing and paying for goods by means bill of sale duly registered before the commencement of this Act, of an inventory with a receipt attached must, under all circumso long as the registration thereof is not avoided by non-renewal stances, register unless he removes the goods on the spot; otheror otherwise.” What upon these words is to happen to a bill of wise at the end of seven days the transaction will be void, even sale made but not registered before the 1st of November ? The against the vendor of the goods. On the other hand, to treat the Act is absolutely silent. It avoids every bill not fulfilling its con- repealing clauses as of only partial operation is to imagine that ditions, without reference to the time of execution. The bills to the farce of protecting the grantor by requiring the bill to be which we refer may be old bills in respect of which the time for explained and attested by a solicitor is to be continued in those registration has already, or will on the 1st of November have, cases of absolute assignment, in which no human being ever passed, but which have, nevertheless, under the present law, a imagined that protection of any kind was necessary. Whilst to qualified validity; or they may be new bills executed within adopt the last supposition-namely, that mortgages are the only seven days of the 1st of November, and, therefore, still capable of documents now requiring registration of any kind—is to make the being registered. To bills of the first kind the Act surely cannot new Act repeal by implication nine-tenths of the old, in so far as refer—to abolish vested rights in so casual a way would be the latter applies to bills of sale which are not mortgages. The monstrous. With regard to bills of sale executed between courts will, in our opinion, probably adopt the view that the October 25 and November 1, can an Act which (by section 2) is repealed sections are only partially repealed, and that bills which to come into operation” on the latter day affect a mortgagee are not securities for money must be attested and registered as at holding a bill made a week before, so as to subject him to the present. restrictive and avoiding clauses of the Act? We cannot tell. But surely a wondering public may ask the question, “Why According to section 3 above quoted it would seem that the Act is are these elemental principles only discoverable by the aid of a applicable; but according to every rule of reason and justice court ? Is consecutive and consistent thought and the use of it would seem that it should have no effect until it comes into the English language no longer possible to draftsmen and operation. In support of the latter view it may be noticed that, legislators ?” whether or not the new law is applicable, the old law certainly is. For the bill must still attested by a solicitor—the section abolishing the necessity for this and providing a new method of THE MARRIED WOMEN'S PROPERTY ACT. attestation, not coming into operation until the 1st of November.
III. On the whole it can only be said that hclders of these bills will only be safe if they have observed the form required by the Our readers will find in another column a letter from a correspondnew Act and the attestation prescribed by the old ; and that even
ent upon a point raised in our last article. As the matter is one of then they will probably have to ascertain by litigation what their great interest, and since other people may perhaps have failed to rights are in respect to the realization of their security ; for it grasp all the bearings of the subject, we gladly return to it for a will
, in any case, be impossible to determine whether section 7, little while. We find some difficulty, though our correspondent defining the events upon which the mortgagee may seize the goods, apparently does not, in transferring principles from cases decided is applicable or not.
under the old law to cases to be decided under the new, in the But the darkness deepens even before we get to the end of absence of any certain information how far the separate use section 3. It proceeds :
created by the Act is identical with the separate use formerly
created by contract. But we do not doubt that a married woman “The expression bill of sale,' and other expressions in this Act, have the same meaning as in the principal Act, except as to bills of sale or other will, somehow or another, be bound by an
agreement and documents mentioned in section four of the principal Act, which may be declaration " to settle after-acquired property. Our doubt was in given otherwise than by way of security for the payment of money, to which saying precisely how she will be bound ; and we felt justified in last-mentioned bills of cale and other documents this Aot shall not apply.” complaining that the Act had, without any necessity, left this That is to say, all absolute assignments, declarations of trust, or and many other questions to be decided by a kind of guess-work. other documents which are not in form or effect mortgages, are Thereupon our correspondent cites the case of Smith v. Lucas, not dealt with by the new law. Then what is the position of such in which the Master of the Rolls said that the covenant “ binds documents ? Section 8 of the Act of 1878, which contains the the property under the doctrine of equity, that that is to be conpresent law upon the subject, directs that bills of sale shall sidered as done which ought to be done,” If our correspondent be attested and registered, and that otherwise they shall be void finds this conclusive of all his doubts, we do not find it conclusive of as against the particular persons specified, so far as regards goods all ours. The proposition is indisputable, that what is contracted remaining in the possession or apparent possession of the grantor; to be done--for that is the meaning of ought to be done, and the proand section 10, sub-section 1, of the same Act goes on to position is not true in any other sense—is in equity treated, so far require that the attestation shall be by a solicitor and shall as possible, as being already done. The Master of the Rolls, be in a specific form. But the new Act absolutely repeals perhaps rather rhetorically and without any very obvious section 8 and section 10, sub-section 1, and contains new necessity, seems to have used this proposition to express the bare
fact, that a married woman who had contracted was bound by with him, and subject to certain other precautionary restricher contract. But the proper application of the maxim is to tions. The judiciousness of the provisions contained in this cases of equitable conversion, in which the need for our section is certainly open to question; yet it is difficult to see how significant restriction, so far as possible, does not appear. It also a Legislature which was willing to accept the rest of the Act happened that, in Smith v. Lucas, no obstacle was presented by could, without altogether failing in courage and consistency, the circumstances. But what comfort does our correspondent have hesitated to enact them. But they might without difficulty think could be got out of the maxim, in an action, or other and with great advantage have been expressed in much clearer proceeding,” against a married woman who had got possession of language and more agreeable grammar. One of the obscurities of the fund and spent it? Even if she had not spent it, we are in the section, touching husbands and wires suing one another “for perplexity to see how, if she had got hold of it, it could be got a tort,” has been pointed out in a previous article. The curious out of her. We think it far from obvious that a decree for phraseology, “ shall have
the same civil remedies specific performance, followed by attachment, could be made
for the protection
of her property, as if such against her; and if it could not, all our doubts and diffic- property belonged to her as a feme sole," seems to mean, ulties about the relevant procedure seem to be let in. We might “the same
as she would have if she were a feme sole even add that the Act has done something to make matters and the property belonged to her.” Subsequently, the worse in this respect than they were before it. Before section enacts that “ in any proceeding under this section a its commencement, a married woman had primâ facie no husband or wife shall be competent to give evidence against each title to deal with property coming to her, but after its com- other.” Here we will only point out, that if the section is mencement she will clearly have a primâ facie title. May we not strictly construed, nohusband or wife can be summoned as a reasonably surmise that this change, making her sole receipt a witness by the other; because that would make them, as the primâ facie discharge, may make property more likely to get into Act would probably have said, “competent to give evidence in her hands than was formerly the case ? It would be very each other's favour." difficult, and it is certainly not usual, to serve notice of the settle- For some mysterious reason, the section (section 16) which treats ment upon every person who may possibly bequeath anything to of the wife's liability to criminal prosecution is separated from that a married woman. With regard to the words in section 19, which treats of the husband's by three intervening sections, none which our correspondent refers to, we may remark that, in our of which has any obvious title to prior consideration. We conopinion, the words,“ any settlement or agreement for a settlement,” jecture that the promoters of the Act had the grace to wish to properly refer to the distinction between settlements executed and leave it out altogether, and only found a hasty and ill-considered settlements executory; which latter phrase seems rather to refer place for it, under the late pressure of their own intense logicality to what are commonly called “marriage articles," than to such or of somebody else's interference. nebulous matters as contracts to settle something which, re- These intervening sections (sections 13—15) which treat of the garded as the contractor's property, is not yet in rerum natura. liability of wife and husband respectively for the wife's anteThe words “ agreement for a settlement” have all the appearance nuptial debts, and of suits respecting the same, seem not to require of having been intended to bear, in section 19, this meaning which from us any detailed examination ; but we may mention that section we attribute to them; and if they are taken to include a covenant 14, which regulates the extent of the husband's liability, has to settle after-acquired property, some curious and doubtful con- avoided an ambiguity contained in the corresponding section of sequences will follow. Are we to suppose that by such a trifling the Act of 1874, by allowing the husband to deduct from the and perfunctory phrase, thus huddled away into a corner, the Act amount for which he is held liable, any sums for which judgment meant utterly to except from its operation the whole future may have been bona fide recovered against him; whereas the property of all women married either before or after its commence- former ct, instead of deducting such sums from his liability, only ment, who should at any time enter, or have entered, into such a enacted that he should not be liable for them “in any subsequent covenant !-that is to say, the whole future property of nearly all action.". It was very recently contended, in Fear v. Častle (30 W. the married women of the classes in which women have any R. 271, L. R. 8 Q. B. D. 380), that an action was not a subsequent property worth mentioning. If this was intended, ought it to have action unless the writ had been issued subsequently to the judgbeen done in such a way?
ment in the previous action. It is evident that, if this contention Resuming our observations upon the Act, we remark, with regard had succeeded, any number of practically concurrent actions might to section 3, which disables a wife from proving for loans made to have been maintained against the husband, and the total aggregate her husband in the latter's bankruptcy, until all the creditors for of his liability might greatly have exceeded the amount of any value have been satisfied, that the provision is in itself a fair one; property received by him through his wife. The question could but it introduces the anomaly that, if the fund had been, under a not arise under the present Act. settlement, vested in trustees who had made the loan, the amount Sections 18 and 24, taken together, enable a married woman to could be proved for in competition with the creditors, though the act as executrix or administratrix, to the same extent as if she were rights of the parties do not seem, in point of equity, to differ in a feme sole entitled absolutely to her separate estate ; and section the two cases. We suppose that bankruptcy will be held to in- 19, in a rather clumsy fashion, sets some reasonable limits to the clude liquidation ; but either the present Act has, in this respect, rules laid down by the old Court of Chancery touching the extent been very remiss, or else some other recent and highly-important of the “protection” afforded to the property of a married woman Acts have been very superfluous in defining bankruptcy as in- by a clause in restraint of anticipation. cluding liquidation.
The last section that calls for particular notice on the present Section 4 is probably intended to enact, what seems to be fairly occasion is section 23 ; which we have already cited for the purwell established as the modern rule of law, that creditors of a pose of suggesting a few necessary interpolations. Its matter is married woman shall have priority over volunteers taking under a sufficiently important to induce us to cite it again :general power of appointment exercised by will. The application of “ 23. For the purposes of this Act the legal personal representative of this principle to married women seems to follow so reasonably from any married woman sball in respect of her separate estate have the same the extension of their proprietary rights, and there was, even pre- Nights and liabilities and be subjest to the same jurisdiction as she would viously, such strong authority for laying it down as the rule, that be if she were llving.” the enactment was probably not strictly necessary; but its inser- This section, if it does not, strictly speaking, raise doubts, omits, tion displays commendable caution.
as it ought not to have done, to take the opportunity of settling Passing by several sections, relating to stocks and shares some doubts raised by its brother sections. How far does the Act standing in the names of married women, and the taking out of affect the rights of a husband with regard to the personal estate policies of assurance by them, which either repeat the existing of his wife dying intestate? We have already adverted to this law, or extend it with reference to the general scope of the Act, question in connection with the language of section 1. Section we pause before section 12, to which we have already briefly 23 contributes nothing to remove this uncertainty. It is probable adverted; which gives to a married woman power to take civil that neither this section, nor the Act as a whole,offers any obstacle and criminal proceedings for the protection of her property, but, to the right of the husband to take out administration to his as to criminal proceedings against her husband, not while living deceased and intestate wife ; and that, as administrator, he would have, the same right as formerly to keep the property to himself. of it. The rule in Pike v. Fitzgibbon, that a married woman cannot But this interpretation admits of doubts, and we are disposed bind future property, does not apply to engagements by a woman before to anticipate, with no little confidence of expectation, that marriage, though they relate to property acquired during the marriage, the above-mentioned question, and also the question respect- and it has been held in many cases (among others Butcher v. Butcher, ing the husband's right to curtesy, to which we called attention 14 Beav: 222, where similar language was used to that in Smith v. in a topic some few weeks ago, will sooner or later find their way acquired property will bind her separate estate. And Davidson, vol. 3,
Lucas) that the covenant of a woman before marriage to settle after. into court. We do not ourselves feel much doubt in either part 1, p. 202 (edition, 1873), treats it as a matter of course that separate case; but it is highly improbable that an adverse claimant would property under the Married Woman's Property Act 1870, would be acquiesce in anything but a judicial decision,
bound, unless expressly excepted. I fail to see sufficient difference between the wording of sections 7 and 8 of that Act and section 5 of the new Act to make a different rule prevail in the latter case, especi
ally as the words of the Master of the Rolls show that the covenant is REVIEWS.
not merely personal, but binds the property, and would, therefore, have been a settlement within the 19th section of the Act, even if the words
agreement for a 186ttlement," which of course include a covenant for a INTERMEDIATE EXAMINATION.
settlement, had not been inserted. I presume they were overlooked INDERMAUR'S SELF-PREPARATION FOR THE INTERMEDIATE EXAMINATION. when it was stated that a covenant for a settlement was not a settlement Second Edition. Stevens & Haynes.
within the Act. Where the covenant is only by the husband, it will not We placed this work in the hands of an acute member of the class for affect separate property (whether under the Act or otherwise); the last whose benefit it is intended, and we subjoin his report derived from case on this point is Dawes v. Tredwell (L. R. 18 Ch. D. 354); 80, in conpractical experience :—This is a very carefully-prepared little work, full nection with that, no difficulty will arise. Of course (although I am not of useful hints and suggestions, embracing concisely the entire range of aware of any case in which the covenant was so framed), if the husband subjects necessary for self-preparation. The plan adopted by the author covenanted that the wife should settle her future property, and there of giving a number of carefully-selected and arranged questions on was no agreement and declaration that she should settle it which would Stephen's Commentaries, with references to the volumes and pages where be equivalent to a covenant by her (see Butcher v. Butcher), it is the answers may be found, and thus leaving the student to work out possible he might incur damages on account of her refusal to settle her the answers for himself, is excellent, and cannot fail to be of advan. separate property. But the court would be reluctant to interpret the tage to the student. The author has also given the answers to the ovenant in that way (see the Master of the Rolls in Davies v. Tredwell, questions which have been put on Stephen's Commentaries at the pre- L. R. 18 Ch. D. 360), and the question might just as easily have occurred ceding examinations, with like references to the volumes and pages.
before the Act.
J. W. E.
[See the remarks at the beginning of our article this week on the Act.
-Ed. S. J.]
MADE IN PURSUANCE OF THE SOLICITORS' REMUNERATION Act, 1881 ;
[To the Editor of the Solicitors' Journal.] This little work shows many signs of the same painstaking carefulness Sir,-At the time of the publication I read your remarks, p. 687, on which we noticed with satisfaction in the larger work by the same authors rule 12 of Schedule I., but having regard to the light which has been upon the Act of last year. The notes are in general accurate, intelligent, thrown on the other rules through the discussion in your journal, I am and clear; and there is not much to be said on the Act which induced to ask whether your construction of the Order is the correct one has been left unsaid. It would perhaps seem ungracious to com- viz., that if a solicitor is entitled to charge according to the scale, he plain that the authore have given us too much, yet we cannot belp the may charge a lesser amount. Surely we did not want the framers of the intrusion of a doubt whether section 3 either deserved or required a note scale to legalize that, and surely there must be some other construction of more than eight pages. At page 32, commenting upon section 7, the than the one you have suggested. I, however, know of none. authors call attention to an inconsistency between sub-sections (3)
Can you or any of your readers inform me what, after the 31st of and (5), " which," they say, “would appear to have arisen from some- December, I shall be entitled to charge for a document I have drawn towbat careless drafting.' We have no undue tenderness either for the day-viz., an agreement, not for a lease, but letting a ground-floor of Act or its drafting, and we concur in thinking that the latter is " offices in the City at £225 per annum ?
A SUBSCRIBER. what careless," but we fail to detect the inconsistency which is here
London, October 23. complained of. The phraseology seems to us to be only clumsy, not con. tradictory, and we should have thought it fairly intelligible ; but if it
[Our correspondent will find that our interpretation of rule 12 is has failed to make itself clear to the present careful
editore, we regard correct: The meaning is, as Mr. Rubenstein puts it in his useful little this as a proof that it falls below the proper standard of perspicuity.
work, “ that if a solicitor, being entitled to certain allowances, chooses to take less, he can do so.' As to our correspondent's question, will not the agreement be considered as a lease, and the costs of the lessor's
solicitor, for preparing it, &c., be £10 128. 60. ?-Ed. S. J.]. CORRESPONDENCE.
“A CLEVER AND CONSCIENTIOUS SOLICITOR." THE MARRIED WOMEN'S PROPERTY ACT.
[To the Editor of the Solicitors' Journal.] [To the Editor of the Solicitors' Journal.]
“LEGAL BUSINESS. -A country tradesman, with a sense of gratitude, Sir,- In your second article on the Married Women's Property desires to recommend a clever and conscientious London solicitor, whose Act, 1882, you have raised a question as to the effect of the usual advice can be relied on and whose charges are moderate.-Address covenant to settle after-acquired property contained in a marriage settle- Postal Department, Daily Telegraph, Fleet-street, E.O." ment of a woman married before the Act on property acquired after the
Sir,- I have cut the above from the 7th page of to-day's Daily Act. It seems clear that it would be the same as its operation before Telegraph. the Act on separate property. What this is when the covenant is by I think it is deserving of some comment in your valuable journal. the wife as well as the husband appears from tho judgment in the case of
HERBERT J. SOARES. Smith v. Lucas (L. R. 18 Ch. D. 531). In the settlement in that case it was "agreed and declared " that the intended husband and wife, and all other necessary parties, should settle the after-acquired property of the
A sad event occurred on Monday last at the meet of the hounds near wife. The Master of the Rolls said, p. 543 : “ The next question is, What is the effect of such a covenant in equity? It has been said that Watford. Mr. John Sedgwick, a well-known solicitor of that town, and the effect in equity of the covenant of the wife, as far as she is con- registrar of the county court there, suddenly fell off his horse, and, on cerned, is that it does not affect her personally, but that it binds the medical assistance being summoned, was found to be dead. The event property--that is to say, it binds the property under the doctrine of has occasioned very deep and widespread regret, for Mr. Sedgwick, in equity, that that is to be considered done which
the course of a long and successful professional career, had acquired the
ought to be done. That is, in the nature of specific performance of respect of men of all classes and of all shades of opinion. the contract, no
Mr. John Pearson, Q.C., was on Tuesday sworn in a judge of the High doubt. If, therefore, this is a covenant to Court of Justice before the Lord Chancellor in his private room in the House settle the future-acquired property of the wife, and nothing more of Lords. is done by her, the covenant will bind the property.” This shows Professor Frederick Pollock will give an introductory lecture on Juris. that the refusal of the wife, if she was of age at the time of the mar- prudence, at University College, London, at six p.m. on Tuesday nest, t) riage, to settle the property would make no difference in the disposition, which the public will be admitted without payment on tickets.