Page images
PDF
[graphic]

reasons advanced for this opinion by Cotton, Lindley, and Bowen, L.JJ., differed from those advanced by the ltlaster of_tl_1e Rolls and Lopes, L.J.; while Fry, L.J., was alone in his opinion that the provisions of the Conveyancing Act, 1881, applied to a bill of sale, and that the insertion of the proviso rendered _the bill of sale void. Before we discuss the grounds for the opinions held by the judges, it will be convenient to state the law as to the sale of chattels pledged or mortgaged without reference to any statute.

The law appears to be correctly laid down in Fisher on Mortgages, Chap. V., part 6, in the words following :-—“ A power of sale incident to his security . g . . is vested in a mortgagee or pledgee of a personal chattel or of stock or policy of assurance or other chose in action, who, by virtue of the implied contract that the pledge shall be effectual to discharge the debt, is entitled, without any express power, to sell the subject of the security ez mere motu upon non-payment of the debt, when a day has been fixed for payment, but only after a proper demand and notice where no day has been fixed. . . . But the security cannot be sold until the debt becomes payable.”

The principal authorities for the rule above laid down are the following :

As to personal ckallela .- Franklin v. Nears (13 Mee. dz Wel. 481); Martin v. Reid (11 C. B. N. S. 730); Pi_r/ot v. Cubley (15 C. B. N. S. 701).

As to stocks and chases in aclion : A zlictum of Lord Hardwicke, C., in Kemp v. Westbrook (1 Ves. sen. 278); Ilarrison v. Franks (2 Eq. Cas. Abr. 725) ; Iockwood v. Ewer (9 Mod. 275 ; same case, 2 Atk. 303) ; Wilson v. Tookcr (-5 Bro. P. C. Ed. Toml. 193; on app. from same case, sub. nom., Tucker v. l7ils0n, l P. Wms. 261); a dictum of Wigram, V.C., that the rule applies to a policy of assurance, in Dyson v. Morris (1 Hare, at p. 422); Carter v. Ware (4 Ch. D. 605); Francs v. Clark (22 Ch. D. 830).

In the principal case Cotton, Lindley, and Bowen, L.JJ'., were of opinion (1) that the power of sale conferred by the Conveyancing Act, 1881, on mortgagees cannot be given to a mortgagee where the nature of the security or the provisions of the instrument shew that the power of sale given by the Act is unnecessary; (2) that mortgages of personal chattels, where the possession is retained by the mortgagor, may provide that, in default of payment, the mortgagee may take possession of that which is, until default, withhold from him; (3) that where there is no express power of sale given by the mortgage deed, a mortgagee of personal chattels who has taken possession may, after default in payment, and after he has given a reasonable time for payment to the mortgagor, sell the property (at common law we presume) ; (4) that the Bills of Sale Act of 1882 enabled provisions to be inserted in a bill of sale giving or regulating s. power to enter and seize the chattels comprised therein; (5) that the combined effect of sections 7 and 13 of the Act of 1882 fixes five days aftenpossession taken as the "reasonable time" for payment; (6) that it follows that _a power of sale arises on possession bei_ng taken of the goods quite independently of the Act of 1881-—-i.e., at a time prior to that on which sale could be made under the power conferred by the Act of 188_1 (1882 iii the report in the Times newspaper, but this is obviously a printer’s error); (7) that it would, therefore, be unreasonable to give the mortgagees a power of sale “as if it had been in terms conferred by the mortgage deed” (see the Act of 1881, s. 19); (8) that the proviso relating to the power of sale, erroneously supposed to be incorporated in the bill of sale, does not invalidate the security.

Fry, L.J., was of opinion (1) that there was not in the case of the mortgage of chattels a power of sale given bylaw prior to the Convey‘P9198 Act °£ 1331; (2) that “mortgage in that Act included a bill of sale of personal chattels ; (3) that if ll bill of sale had been made after t_hc Act of 1881, and before the Act of 1882 had come into operation, containing no express power of sale, the mortgagces would have had the power conferred by the Act of 1881 sub'oct to the restrictions imposed by section 20; (4) if independentl J of the C°“eS'111°i118 5%, a mortgagee of chattels had an imglied power of sale, such power would be excluded by the express power conferred by the Conveyancing Act of 1881 - (5) That there wa nothing in the statutory form of the bill of isale to exclude th: operation of the Act of_ 1881; (6) that sections 7 and 13 of the Act of 1882 were negative clauses, not conferring but im osin

[ocr errors]
[ocr errors]

Conveyancing Act, 1881, subject to the express restriction imposed by section 20, and that the bill of sale was void as attempting to do away with these restrictions. _ _

The Master of the Rolls and Lopes, L..T., were of opinion (1) that before the Act of 1882 came into operation the mortgagee under a bill of sale would have been clothed with the power of sale conferred by the Conveyancing Act, 1881 ; (2) that the provisions of the Bills of Sale Act clearly showed that a bill of sale under the Act of 1882 was to be complete in_itself, and was not to require reliance on any other Act of Parliament; (3) that the power of sale conferred by the Act of 1881 was repugnant to the provisions of the Act of 1882, and, therefore, could not apply to bill of sale; (4) that the mortgagee had a power of sale conferred by the /th and 13th sections of the Act of 1882 ; (5) that, if no power of sale is given by the Act, he may seize the goods, and, as assignee, sell, subject to any right to the grantee to redeem, which right must be exercised within five days after seizure to prevent a sale.

The results of the decisions are the following :—

(l) The Master of the Rolls, Cotton, Lindley, Bowen, and Lopes, L.JJ., held (r/isseniienfe, Fry, l..J.) that the power of sale conferred by the Conveyancing Act, 188l, was repugnant to the Act of 1882, and, therefore, could not apply to mortgage bills of Sale 1111116! that Act.

(2) That the mortgagee under a bill of sale under the Act Of 1882 can sell _ _ _

(a.) under his common law rights after seizure and waiting ii reasonable time [five days, as mentioned in the Act] (per Cotton, Lindley, and Bowen, L.JJ.); ,

(b.) under apower of salc conferred by the Act of 188; ( per the Master of the Rolls and Lopes, L.J.); _

(0.) under the power of sale conferred by the Conveyancing Act, 1881 (per Fry, L.J.). _ _

There remains a question of very great practical importancenamely, \Vill the decision in Re Merritt render it necessary t0 make any change in the forms of mortgages of stocks and of chases in action, such as policies, which, it must be remembered, do not fall within the provisions of the Bills of Sale Acts ?

There are two cases that must be distinguished :_——~ _

1"ir.st, where the conveyance to the mortgagee 1S'HI_l3.d8 in 501116 statutory manner operating at law and not containing the provisions as to redemption. In this case the mortgagee appears I0 have obtained possession of the property, and can therefore sell under his common law rights in default of payment 911 the $1‘pointed day. It appears very doubtful whether in this case 9-"Y deed of defeasance would be a “ mortgage ” within the 11168-111118 °f the Conveyancing Act, 1881, and, therefore, whether any p0Wel‘ °l sale could be implied by such a deed. It appears to follow fr0l11 paragraphs ( 1) and (6) of the judgment of Cotton, Lindley, and Bowen, L.JJ., that, oven if the deed of defcasance was a mortgltge within the meaning of the Act, the statutory power could not be implied as it might possibly not come into operation till after the common law power had arisen; but the opinions of the Master of the Rolls and Fry and Lopes, L..T J ., who agree with each other 011 this point, difier from those of Cotton, Lindley, and Bowen, L-H

Secondly, where the conveyance to the mortgagee _is_ mode bl’ deed operating in equity only, and containing the provisions as $0 redemption. There is considerable difficulty in seeing What: "1 “ case of this nature, is equivalent to taking possession of personal chattels: it may be argued that nothing but actual reduction iliw possession—i.c , having the moneys secured by the cliose m avfwfl paid otf—is sufficient ; but this view is probably incorrect, and_1l?1§ apprehended that giving notice to the persons whose duty it is to pay the money secured by the chose in action, even if it pay=ll>l° only at a future time, will be suflicicnt. If this view is correct, the mortgagee can, after default in payment on the appomlied; dayi sell the equitable interest vested in him, exercising aneq111ll1bl° power implied from the nature of the transaction similar to ll1@_ common-law power attached to mortgages of personal chattelsd and the reasoning of Cotton, Lindley, and Bowen, L.J-T-i WW1 Bllew that, as in the case of deeds of defcasance of legal 00l1\”°§" ances of chases in action, the power of sale implied by the C011veyancing Act, 1881, could not arise—a conclusion so contrary t0 thc practice of conveyanccrs that it is hardly conceivable that ill 15 correct.

It should also be remarked that the first paragraph of the l“d5' ment of Cotton, Lindley, and Bowen, L.JJ., is open to the °b5“'

[graphic]

ec. =5, I836. THE SOLICITORS’ JOURNAL _ . 139

[graphic]
[graphic]
[graphic]
[graphic]

vation that where the power of sale given by the Conveyancing Act, 1881, is expressly incorporated in the mortgage deed, the express power thereby given ought to supersede the implied power arising from the nature of the transaction, according to the maxim, “ Eirpressumfiml cessare tat-itum.”

The result appears to be that, whether the instrument is a defeasance of a legal conveyance of a chose in aclion transferred at law, or s. mortgage, effected by deed, of ii chose in action transferable in equity only, there can be no objection to inserting an express power of sale, which, of course, can be effected by expressly incorporating the power of sale conferred by the Conveyancing Act, 1881; and perhaps it will be the safer course to do so until a decision on the point has been given.

[graphic][merged small]

Tan A.NNn.sL PRACTICE, 1886-7, name A Coi.i.Ecri0N or THE Srs-rures, Osnans, AND RULES RELATING T0 THE GENERAL PRACTICE, PROCEDURE, AND J URISDIUFION or THE CHANCERY AND QUEEN'S BENcii Divisions or run Hicn Couar or J UBTICE, AND on APPEAL ranasraon T0 THE Couiir or APPEAL AND House or Loans. By THOIi(.\S Snow and Hunaar WINSTANLEY, Barristersat-Law. William Maxwell & Son ; H. Sweet & Sons.

After our notices of this book in previous years it is probably only necessary to announce the appearance of the new issue; but we should be sorry to do so without a word of commendation of the care and accuracy bestowed upon the last issue, to which, from constant use, we can testify. Such testimony, however, is probably little needed, as the array of white-backed books on the bar seats and bench on certain days in the Chancery Division is sufiicient evidence of the general appreciation of the work. We regret to observe the retirement from the editorship of Mr. Joseph Walton; but, so far as our observations of the new issue have gone, we see no reason to withdraw or modify with regard to it the praise we have bestowed on previous issues. The Supreme Court Rules of December, 1885, and July, 1886, and the Funds Rules, 1886, are inserted in their proper places, and the diligence with which the decisions of the year have been collected is shewn by the fact that upwards of 300 cases are added in the present issue. The index has been greatly enlarged, although we have never found any difliculty in reference from the previous indices. The only point on which we have discovered a lack of information in the book is as to the Order in Council of the 16th of December, 1880. which, we think ought to be printed in full. This, however, is matter mainly of historical interest.

[ocr errors][merged small]

Tun LAWAND PRACTICE IN BANKRUPTCY, COMPRISING THE BauxRUPTCY Aer, 1883; THE BANKRUPTCY RULES, 1886; THE DEBTORS AC'1‘B. 1869, 1878; AND THE BiLi.s or Ssi.E Acre, 1878 and 1682. Fonnrii EDi'rioN. By ROWLAND VAUGHAN WILLIAMS, WALTER Vaucnsn Wii.i.i.\iis, and EDWARD WILLIAM HsNsEi.L, Barristersat-Law. Stevens & Sons ; H. Sweet & Sons.

_With commendable promptitude the authors of this treatise have seized the opportunity afibrded by ii. new code of rules to bring out a fourth edition of their work. In order to accommodate the numerous cases decided since the passing of the Act, they have enlar ed their Page from demy to royal octavo; and, by a curious coincigence this change has exactly answered the purpose, the number of pages in the two editions being precisely the same.

In our notice of the previous edition, while doing justice to the clearness of the style of the book and the conciseness with which the results of the cases were stated, we felt constrained to comment somewhat unfavourably on the tendency to retain unnecessary disquisitions on the old law. This, we regret to say, has not been wholly amended on the present occasion, and the fault is not one which becomes more venial with passing years. Thus we are still supplied, in the note to section 28, with some remarks on the law and practice under the Insolvency Acts ; and, under section 47, the law_relating to voluntary settlements, as laid down by the Act of 15%-19, still finds a place. Attention is drawn to an interesting point with reference to compositions before bankruptcy in the following Pfl881§g_e extracted from the note to section IS:-“There is no express provision in the Act as to what are to be the powers of the debtor over his estate after fl composition resolution has been approved. That he must have power to deal with his estate by realizing it in °'d"""'Y course of business, for the purpose of enabling himself to pay the composition, would seem to be a necessary practical implica

[ocr errors]

1

i

tion. To‘ what extent, if at all, he may pledge it to give security to new creditors, except for the purpose of raising money to pay tho composition, may be doubtful. The case of Em parts Allard, Re Simona (16 Ch. D. 505), would still seem to be an authority upon this point." Suficient weight is not given in this passage to the fact that, in cases of composition under section 18, there is no adjudication, and therefore, no cessio bonorum. In the case of Exports Allard, Re Simona, cited by the authors, the composition was preceded by liquidation under the Act of 1869, and the reference seems, therefore, to be inappropriate. The subject was incidentally considered in Ea: parte Clarke (32 W. R. 775, 13 Q. B. D. 4262, where Bag allay, L.J., expressed the opinion “ that the approval 0 the scheme Tiy the court would be equivalent to the discharge of the debtor.” Until adjudication the civil status of the debtor is not affected, and it might, we think, be reasonably contended that a compounding debtor under section 18 has no need of a discharge, and is free to acquire and dispose of property from the time when the composition or scheme of arrangement has been sanctioned by the court.

The authors do not seem to have been quite as diligent in ransacking the reports as we should have expected, for we notice some few conspicuous omissions. Thus the important case of Colonial Bank v. W/zz'nne_z/, where the House of Lords reversed the decision of the Court of Appeal, was reported in the WEEKLY REPORTER so long ago as last July (see 34 W. R. 705), yet there is no reference to any report, except that contained in the Weekly Notes. Again, we should certainly expected to find, at p. 158, the cases of Phelps, Stokes, (ft Co. v. Camber (33 \V. R. S29, 29 Ch. D. 813), and Brown, Shipley, it: Co. v. Kou_r/Ii (34 W. R. 2, 29 Ch. D. S48), or, at all events, the case of F1-ith v. Forbes, there cited, might have been withdrawn as practically overruled by the recent cases to which we have referred.

On the index we can bestow the highest praise, for we have tested it by many references, and never found it wanting.

[graphic][merged small][merged small]

[T0 the Editor of the Solicitors’ Jou-rnal.]

Sir,—You are aware that R. S. C. 1883, ord. 22, r. 1, provides two different ways in which money may be paid into court by a defendant :- _

(ri) Payment before or at the time of delivering defence (o_r, by leave, later), which payment “ shall be taken to admit the claim or cause of action in respect of which the payment is made."

b “ P t ‘ll d e denying liability.”

On(this “ €\¥ill:1]i1"uliaei Z nib/i;n:c—“ It follows from this rule, as read with rule 5 (a), that a defendant _desirin_g to pay into court and deny his liability must wait till he delivers his defence.

On the expiration of a ninety-nme years lease,_ we recently brought an action on behalf of the freelioldar 8.(§'llll1Bt the last assignce of the lease for rent and dilapidations, an the defendant, after service of writ, paid a small sum into court, thus bringing hunself under the first branch of the rule. _

The sum paid into court was the amount claimed for rent, but the defendant did not specify any particular part of the cause of action in respect of which the payment was made, and we presume, therefore, that the payment must be taken to have been made in respect of the whole cause of action. _

Nearly n month afterwards the defendant put in a defence, denying 1ia,bi1i.*,y_i,¢,, denying (among other_things) that the of years had been vested in him, and dcnying the plaiiitifl‘ s title as assig-nee of the lessor.

We, therefore, took out a summons to shew cause why the defence should not be struck out or amended, as being contrary to the rule referred to and embarrassing. It appeared to us that a defendant 11 ‘ b a rocecding in the action, admitted the cause of_ action,

[ocr errors]
[ocr errors]

- ' Wilson " language of the rule,'and if they are correct the note in . . seems to rcqiiirc considerable modification. At any rate W9 thmk It

[graphic][ocr errors][merged small]
[graphic]
[ocr errors]

may be useful to call attention to the matter, and we should_ be glad to know the views of yourself and your readers upon the subject. London, Dec. 20. W- & W

[See observations under head of “ Current Topics.”—ED. G.J.]

REPORTS OF DIVORCE CASES. [To the Editor of the Solicitors’ Jour-naZ.]

Sir,-—Rei'erring to the observations upon the la_w as to the cirelusion of the public from the hearing of cases in the Divorce Court in your last number (the correctness of which cannot probably be gainsaid). 1 for one must beg leave to take exception to the principle enunciated in l he concluding paragraph—viz., “ That tho exclusion of the public is a greater evil than the possible contamination of some by becoming acquainted with offensive details.” That _the hearing of such cases in public, and the publication of the details in newspapers, is injurious to public morality cannot admit of doubt, and I venture to submit that the interests of the morals of the people far exceed the private interests of the persons who figure in the proceedings in_ that court—or any possible good to the public by their publicationbesides which, our judges, in the present day, may well be trusted to administer justice impartially, even with closed doors, in cases manifestly imfit to be heard in public. The state of public opinion on the subject calls, I believe, for some modification of the present state of the law, and I hope to see the day when such cases as that now before us will not be allowed to contaminate the ublic mind, and, at most, that abare statement of the facts with the jud inent will be allowed to be published. It is the details which do the iarm, and these, I think, ought to be put a stop to—the sooner gheibgzter.

- . AM

SUMMONS FOR APPORTIONED AMOUNT OF \VORKS UNDER PUBLIC HEALTH ACT.

[To the Editor of the Solicitors’ Jam-nal.'_l

Bir,—R-eferring to your recent report of Corporation of Jlluncliester v. Hampson (ante, p. 127), may I be allowed to point out that, as a matter of fact, Hnddleston, B., is clearly wrong in saying, that “ if the magistrates had decided on the ground that the street was a. highway repairable by the inhabitants at large, Rqq. v. Hutchins (27 W. R. 724, 6 Q. B. D. 300) shewed that they had gone beyond their jurisdiction.” That case clearly implies, as will be seen from a perusal of it, that the magistrates have a right to decide on that ground, though they have no right to make an actual finding in words that the street was a highway repairable, &c., but only a right to dismiss the summons on that or some other good ground. And Eccles v. The W1‘:-ral, 40., Aufliori't_1/ (34 W. R. 412, 17 Q B. D. 107), following Hes_/i-e_tIi v. Atherton Local Briaril (22 W. R. 58), is a direct decision of D, divisional court that the magistrates have u right to decide on this srguvdbl ii. H.

ec. .

[ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][ocr errors]
[ocr errors]

2. Where a cause or matter her ' Division is proceeding in the Distiizitliilegiigiile§fc?[?h1; lg] :1 ghaincgy District Registry of Manchester, the district re istriirpsh llr mt '0 respect thereof, and throughout all the proceeglin s thea ' ac In chief clerk of the judge of the Chancery Division to gvhom rfilln, as a or matter is assigned, and as registrar and taxing master ce ciiilse to directions to be given from time to time b such ‘ da ctirpmg vided that no order for the ii ment of money oyut of dd got ml amonnt exceedin £50 shall lie made in a u or an

[ocr errors]

registrar who is a practising solicitor shall tax the costs in any such cause or matter.

Onnna XXXV. RULE 12.

3. Order XXXV., Rule 12 shall be read as if the following words were added thereto :— _ _ _ _

Provided that in any cause or matter proceeding in the District Registry of Liverpool or the District Registry of_Manchester_ such reference or appeal maybe to any judge for the time being Hltting either at Liverpool or Manchester.

ORDER LXV. Rrnn 27.

4. Order LXV., Rule 27, Regulation (48), shall be read as if the following words were added thereto :—

Provided that in the taxation of costs between solicitor and client the taxing cflicer shall be at liberty to allow larger fees, under special circumstances to be stated by him.

(signed) li.\i.snI7n\', C.

COLERIDGE, G.J'.

ESIIER, M.R.

J.\)ll-ZS H.ix:\'n.\', Prest. P.D. and A.
N.\TH. LIXDLEY, L.J.

Enw. FRY, L.J.

C. E. POLLOCK, B.

H. Miuvisrv, J .

17th December, 1886.

PAY OFFICE, SUPREME COURT. Norica or OFFICE REGl'I.A'l‘XONS roii run INFORMATION or Ar-rLicAxrs.

[N.B.-The following Regulations will be subject to variation in exceptional cases.] LODOMENTS ix Comm‘:

For cash, the directions for lodgment will be ready not later than the

afternoon of the day following the receipt of the schedule or reuest.

Fo(i- securities, the directions for lodgment will be ready the second day

following the receipt of the schedule or request.

[N ote.-—Lodgment directions may be applied for and sent by pO8l1.]

Isvizsriissrs IN SHCl'RI'l‘!ESZ—

Government securities urcliascd wil be placed to the credit of the suitor-‘s account four diiys after the money is available.

Instructions for the purchaseof other securities will be given to the broker on the day following that on which the money is available: and the securities will ordinarily be placed to the credit of the suitor‘s account in about four days afterwards; subject to any unavoidable delay in completing the deeds or in obtaining the particular security.

[N ote.—This will not apply to investments of accumulated dividends] SALES S ' ' :—

The <]?):0C:é(ll:iJ1g€OV€l'n!n0l1t securities will be placed to the credit of the suitor's accmint four days after the receipt of the request for the sale.

Instructions for the sale of other securities will be given to the broker on the day following the receipt of the request ; and the proceeds will ordinarily be laced to the credit of the suitor's account in about four gayg alterwalgs ;fl:‘l1l.')j}iCli Hi! any unavoidable delay in completing the

ee soriu e ec gt esae. [N ote.—Requests for sales may be sent by p0st.] Tnsxsr . S. ' ' -C v :—

T1‘8.D:f::‘BO:f (,irLfJLVIEll‘1i11l11Z1S8:i2TB:CI'l1llholh: Twill, iu ordinary course, be com

pletid at Btapgr of Engéiind in four clear days after the appl.iOBl5l011 as eeii e - ,

Directions for tiie trdnldisii gt dlilier securities will be ready on the second

day following the delivery in the pay-ofllce of the completed defilDiziiviznr or Boxns B . . & . 1

Dlrcctions will be 'mi;l§i'i the second day after the receipt of the 8P

plication (or of the schedule). DELIVER ' 1: C - ;

Chequhsofor giliiilcigsial moneys will, as a rule, be ready within a week of the receipt of the schedule or other authority, or of the completion of necessary previous transactions or conditions, if any.

Cheques for dividends on Government securities will be ready on the usual days for payment of dividends on the Bank of England (flllblecli to possible delay on the occasion of first payments).

Chefquesgorddivldends on other securities wiil be ready within a week aterte ivid dsh b - ttthe Bunk of Englaiild. We em placed to the pay omce accoun a

[ocr errors]
[ocr errors]
[ocr errors]
[graphic]
[graphic]

Dec. 25, I886. A TI-IE SOLICITORS’ JOURNAL. 141

[graphic]

Pownas or A-rroaxrr :

Will be ready for delivery on the third day following that on which they are bespoken. They may be bespoken by a London solicitor, or a London banker, or by the giaiitor (if duly identified).

All powers for receipt of funds must be prepared in the pay-oliice and on the prescribed form. N 0 general powers can be accepted for this purpose.

CERTIFICATES or Fuxns ;-—

Will be ready on the second day after thgy have been bespoken; but merely re-dated certificates (when back- ated not less than one day) will be ready the day after they have been left.

NEGATIVE CBBTII-‘ICATES :

Will be ready on the second day after that on which they are be

spoken, but will always be back-dated four days. TRANSCRIPTS or Accorxrs :—

Transcripts of accounts will, in ordinary cases, be completed within one week of the day on which they have been applied for ; but this period will be liable to extension when the transcript to be completed covers. a period of more than two years. _

Transcripts required for the use of chief clerks and other officers of the court will have precedence.

When so requested, the prices at which securities have been purchased or realized will be inserted in the transcripts.

All transcripts of accounts should be left at the pay-ofliee to be com. pletfd at least once in a year (when possible, during the long vacation .

DORMANT Fusus (i.e., funds not dealt with for more than 15 years) :—

Applications for information ( with the necessary stamp as below) must pie in Wlfgtsiélg, and must satisfy the conditions of rule 101 of the Funds

u es, .

Applicants should clearly understand that the only inionnation which it is within the power of this department to furnish is,—(l) the auitigunt of a particular iund ; (2) the date of any order dealing there wi .

Vsiiim. INFOBHATl0.\' :

Verbalinformation as tofunds in court will not be iven, except by special leave of the principal of each branch, or 0% the paymaster, or deputy-pagmpster

Forms can be o tamed in rooms Nos. 5, 419, and 420. Deviations from the authorized forms cannot be allowed.

sTA!iP!:—‘
The stamps required on pay-oifice documents are as under:—

s. d. Certificate of funds . . . 1 0 Impressed on request. Transcript of account . . . 2 0 Impressed on each opening. Requefit tqpsy, lodge, transfer, or deposit in court, or to pay out unds (except when the 1°d8"1e11t. payment, &c., has been directed y an order) . 1 0 Bequest for information as to Impressed on request. dormant funds . . . 2 6 Adhesive or impressed. Request for other information . 1 0 Adhesive or impressed. ()ihce_ copy of schedule to ailidavit under Trustee Relief Act 1 0 Impressed on oflice copy. Power of Attoruey.—Fee for pre- 1 . _paration* 3 0 Tlgsevsetggiii is in addition to the q‘med1‘l31l;lr(1;1c1$.cg;i:)Z- is not re.

Power of_attor_ney.—-Revenue stamps : . For receipt of one dividend or | interest pnymenti‘ . . . 1 0 i

For receipt of more than one

Y N dividend or mterest paymentt 5
ghlgevcnue stamp is required when
resrly amount is less than cs.

For receipt of principal money
!10t_ exceeding £20, or of
Y'l0dl§>&l payments (other (
than dividends or interest) not
exceeding £1O1per annum . 5 0

For receipt of pr ncipal money
exceeding £20, or of periodical
Pllyinents (other than dividends
or interest) exceeding £10 per
M11191 . . . .

0 fr Impressed on power.

[graphic]
[ocr errors]
[merged small][merged small][ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

This was_ an appeal from the decision of Huddleston, B., and Manisty, J., and raised an important point as to the validity of judges’ orders made by consent and not registered under section 27 of the Debtors Act, 1869. Qii the 16th of September, 1884, a judge's order was made by consent m_ the actions of Gmcmi v. Wriy/it and iVriyl|t v. Gowmi, by which the plaintifi in the former action was to sign judgment for £813 13s. 9d. and costs, but judgment was not to be signed it £200 and taxed costs were paid in monthly instalments by the defendant to the plaintiff; the cross-action was to be stayed and certain promissory notes and documents were to be delivered by the plaintiff to the defendant. The plaintili handed over the documents, but the defendant made default in the payment of the instalments. The plaintiff thereupon signed judgment and issued execution. The defendant sought to set aside the judgment on the ground that it had not been filed in accordance with section 27 of the Debtors Act, 1869. The matter was referred by Stirling, J., to the Divisional Court, and that court held that the section applied and set aside the judgment.

Tns Covar or Arrnai. (Lord ESIIER, M.R., and LINDLEY, L.J. ; Loras, L.J., dissenting) now reversed that decision. '1‘hcy said that, although tho words of the section were suilicieutly wide to cover this case, it was a principle of law that, unless thc wording of the statute expressly forbade such a construction, general words ought to be limited so as to prevent a man from being enabled to impair the obligation of his own contract by his own act. They considered that, comparing the section with section 137 of the Act of 1849 (12 & 13 Vict. c. 106) and with the interpretation given to that section in the case of Bi-yzm v. Child (5 Ex. 368), the proper meaning of the section was that such orders, when unregistered, were void as against creditors, but were not void as between the parties. It would be an absurdity to allow a man to avoid that to which hc had con~ sented and from which he had derived benefit. Lorizs, L J., considered that the case of Bryan v. Cbihl had no application to the present case, and held that there was no power to limit the words of the section.—CoL'xssr., Jelf, Q C., and G. .Ucnders0n; C/1111']!-/¢, Q.C., and R. 0. I). Lana. Soi.icirons, Vrnninys, Son, §'MG7l71iflfl ; Snell, Sons, §- Gremip.

MALLETT v. HANLEY AND ANOTHER—G. A. No. 1, 17th December.

[ocr errors]

This was an appeal from the decision of the Divisional Court (Denman and Hawkins, JJ.). The plaintiff was the promoter of a Bill in the House oi Commons which was opposed by the defendants as directors of the Skcgiiess, Chapel, St. Leoiiards, and Alford Tramways Co. The Committee of the House of Commons, before whom the Bill came, held, under 27 & 28 Vict. c. 27, s. 2, that the promoter had been vexatiously subjected to expense by the opposition or the petitioners, and theg also found that the defendants were, in fact, the tramway company, an held them personally liable for the costs to be taxed by the taxing officer of the House. That oflicer issued his certificate on November 8, 1886, and the plaintiff thereupon issued a specially-indorsed writ for the amoiuit under section 5 of the Act. That section provides that the party entitled to such costs may recover them by action of debt, in which it shall be sumcient for the plaintiff to declare that the defendant is indebted to him in the sum mentioned in the certificate, and the plaintifl shall, upon filing the declaration and certificate and an ailidavit of demand, be at liberty to sign judgment as for want of plea by nil dit-it. The defendants appeared to the writ and delivered a statement of defence, in which they denied that they had appeared before Parliament or opposed the Bill. The plaintiff proceeded to sign judgment nevertheless, but the ciilcer, on hearing that a statement of defence had been delivered, declined to do so, and was upheld by the master and judge at chambers and by the Divisional Court.

Tiiiz Covnr (Lord Esnizn, M.R., LXNDLEY and Lorne, L.JJ.) now allowed the appeal. They said that although they thought that a defence might be delivered with leave, it such defence was a denial of the jurisdiction of the Committee of the House of Commons to make the order, they fclt clear that without leave it was incompetent to the defendants under the Act to deliver a statement of defence. The proper course for the defendants if they really questioned the jurisdiction was to move to set aside judgment after it had been 5lgl1€d..—-C0l'!\‘.'~‘i-IL, Llliftf, Q C., and 1- WOliitly; Greene, Q,.C., Kisr-Ii, and Fraser Mclcod. boiiciroiis, Torr, [Imeways, Gribl/la, 4- Oddie ; IV. Whitfield.

[ocr errors]
[ocr errors]

The question in this case was as to the right of the lord of a manor to double fines, on the sale of settled copyhold land by an equitable tenant for life under the power conferred by the Settled Land Act. By sub- section 3 of section 20 of the Act it is provided that: " In case oi 3 deed relating to copyhold or customary lan , it is sufllcient that the dee be entered on the court rolls of the manor, and the steward is hereby required, on production to him of the deed, to make the proper sniff‘; 2:5; on that production, and on payment of customary fines, sci, iilrll 3) £6 dues or payments, any person whose title_under the deed reqg te9_f the perfected by admittance shall be admitted accordingly . ‘1 r 1

[graphic][ocr errors][ocr errors][ocr errors][ocr errors]
[graphic]

steward so requires, there shall also be produced to him so much of the settlement as may be necessary to shew the title of the person executing the deed, and the same may, if the steward thinks fit, be also entered on the court rolls." A testator who died in 1885 devised n cop_yhold estate to a trustee, upon trust to pay the net rents to his wife for life, and after her death the property was to go to his children. The widow entered into a contract to sell the copyhold estate under the Settled Laud Act. The trustee had not been admitted, but the lord was not yet entitled to seize for want of a tenant. The purchaser, and the lord and the steward of the manor, took out a summons under the Vendor and Purchaser Act, asking for a declaration that the vendor was bound to pay to the lord the fine, and to the steward the fees, which would have been payable if the customary heir or devises had been admitted. The vendor, on the other hand, contended that the only fine payable was that due on the admission of the purchaser, and that the lord was not entitled to the second fine claimed as on the admission of the trustee. Chitty, J ., in chambers, held that the lord was only entitled to the flue on the admission of the purchaser.

THE Covar or A1’I’E.\L (Cor-i-ox, BOWEN, and FRY, L.JJ.,) afiirmed the decision, FRY, L.J., diifering. Ccrros, L.J., said that the question before the court was only between vendor and purchaser, but it was understood that the decision would be accepted by the lord and steward of the manor. The question was, whether the same fines and fees were payable as would have been payable if the trustee had been admitted. No customary fines would be actually payable in respect of admission of the trustee if he was not in fact admitted. The Act gave a new way of passing copyhold estates which made it unnecessary for the trustee to be admitted. It gave a purchaser a right to be admitted cu payment of customary fines, but there was no reference in the Act lo any customary fines which would have been due if the trustee had been admitted, and no such fine could be called a customary fine when there had been no admission of the trustee. If the Legislature had intended to deal with the particular ease under consideration in the manner contended for by the appellants, it would have used language, as in the Wills Acts (section 5), expressly giving to the lord of a manor the fines, &c., as if the transfer had been iii the ordinary way. The appeal, therefore, failed. The words of the Act did not give the lord fines n respect of that which never took place. Bowiix, L.J., concurred. F_‘aY, L.J., regretted that he took a different view. The words of the section were general. They did not speak of “the” customary fines payable on a purchaser's admission but of “ ciisto fi ” &

[ocr errors]

given y e statute, and what customary fines were referred to? Two answers were possible. The customary fines indicated must be either those which would have been payable on or before admission if the Act had not passed, or those which would have been payable on admission if the Act had not passed. If the first construction were adopted, the rights of_ the lord would remain intact; the other construction deprived him of rights, Was i_t within the scope of the Act to afiect the rights of the lord? Hislordship thoiightnot. The Acthad quiteadiffei-ent object,

Ind. as the words were equally open to two constructions. it was preferable to adopt that which did not prejudice the rights of the lord. If that construction 've d

[ocr errors]
[ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
[graphic]

the scheme. The court had a discretionary power and must see that justice was done between the shareholders; on consideration he did not think that the reduction would work any iuj ustice and he confirmed the scheme.—OoL'NsEi., Rigby, QC., and Phipson Beale. Soniciroiis, Blunt Q Lawforii.

[ocr errors]

"upon trusts as to the proceeds thereof for F. for life with remainders over

in strict settlement, and having settled his residuary personal estate upon the like trusts. an action was instituted by F. for general administration and also an order obtained by F. on summons in chambers under the Settled Land Acts, 1882 and 1884, that F. was entitled to exercise the powers of tenant for life under section 63 of the Act of 1882, and, therefore, not entitled under the Act of 1884 to exercise such powers, except with the sanction of the court, and that the costs of the summons be costs in the action. Upon the drawing up of the order the registrar declined to insert any order as to the costs. A petition was subsequently brought by F. to wind up the action, and it was asked that costs cf, and incidental to, the petition be paid out of a fund in court representing the testator‘s general rcsiduary estate. The petitioner asked for leave to amend the petition by including in the costs asked for those of the summons in chambers.

CIlI1“1‘\', J ., said that, as the summons was for the benefit of the remaindermen as well as the tenant for life, the costs of the summons were properly payable out of the testator's residuary estate, and made an order as pl'ByGd.—-'COL'NSEL, ])!l)l(i(I8 Gardiner ,' S. J1. L. Druce; Simmomil. SOLICITORS, Gnrliden 5- TT€IlN716,' J. W. Hm-sh; E’. A. Neale.

CARDEN v. THE ALBERT PALACE ASSOOIATION—-Chitty, J., 21st December.

[ocr errors]

In this case an application was made for leave of the court to authorize transactions relating to the affairs of a limited company. It appeared that the action was a debenture-holders‘ action, and that subsequently thereto a petition to wind up the company was presented and a provisional liquidator appointed. All parties desired to raise a sum of money to be a first charge on the company's property, and an order was obtained for that purpose. The money was required for the purpose of enabling a receiver and manager appointed in the action to carry on the company's business and also to enable the company to perform covenants contained in their building agreements, and thereby to obtain the leases which were to form the security for the proposed loan. It was objected by the chief clerk that the parties could not enter into a valid transaction, having regard to section 153 of the Companies Act, 1862, which provides that all dispositions of the company's property, &c., made between the commencement of the winding up, and the order for winding up shall, unless the court otherwise order, be void. The application was supported by the plaintiff and defendants and also by the petitioner.

Ciiri-'rY, J ., said that, as he was assured that the transaction was for the benefit of all parties. he would make an order both in the action and iii the petition, authorizing the parties to enter into the leases, and to hand over the leases to the trustees for the debenture-holders, notwithstanding section 153 of the Companies Act, 1862.—Coi'Nssi., Haldane; Gromnor Woodr. SOLICITORS, Diamnid §- Tea!/ier; Stroller: 4- Hilliard.

[ocr errors]
[ocr errors]

This was a summons under the Vendor and Purchaser Act, 1874, and the question arose, whether a purchaser of laud could relieve himself of the obligation to pay interest on the purchase-money, after the date fixed for the completion of the purchase until actual completion, by depositing the purchase-money in a bank in joint names. The contract contained ll condition that, if the com pletioii of the purchase shouldbc delayed by 811)’ cause whatever other than the wilful neglect or default of the vendor beFofld the day fixed for completion-the 15th of February, 1886-the PllmllflfielShould pay interest at five per cent. on the unpaid balwoe °1 the purchase-money from that day until the actuai completion. Considerable delay took place in the completion. On the 16th of February, 1336» the purchaser's solicitors wrote to the vendor's solicitors, “ The plll’€h359' money is ready, and lying idle" at a bank which they named; find. °I\ the 21111 of March, they again wrote to the vendor's solicitors, “hsvillk _T@8fl1'<1 _ to the further delay likely to arise, in consequence of U19 insufficiency of the power of attorney by L., we wish to avoid the possibility of any question arising between us as to the purchaser's liability to pay interest on the balance of his purchase-money and we therefore befl tO_1uform you_ that he is willing forthwith to deposit such balance in 1°11"? iiflmes with any first- class London banker on deposit, pending the diie eX9f>'1t10I_1 {If the conveyance to the purchaserand collateraldeeds." The vendor s solicitors accepted this Offer " without prejudice to any question as to llltereflfi-" This summons was taken out b th d 11¢ the

[ocr errors]
[ocr errors]
[ocr errors]

on 6 P3171 05 the vendor, and that the purchaser was bound 110

[graphic]
« PreviousContinue »