Page images
PDF
EPUB
[graphic]

B. and C. For this reason it was that if A., a lessor, had, by mort- clear, and they led to much doubt amongst the judges in the case gage, parted with his legal estate, the covenants entered into by of Minshull v. Oakes (1858, 2 H. & N. 793). The covenant does B., the lessee, did not bind C., his assign. Thus privity of estate not run as to a thing in futuro, he says, because the law cannot may be taken to include both privities or one only. Now for annex it to a thing not in existence; hence, it can only be annexed covenants to run with the land at law, there have been till recently by the intention of the parties exhibited in the naming of the two requisites; they must relate to the land, and there must be at assigns. But the former part of this reason depends upon a least privity of estate between successive assigns of each party, if material view of the relation of the covenant to the thing which not also between the original parties themselves.

will not bear examination, for the law can enforce the agreement But on this subject the books are full of doubts. Lord St. against the assign if it so chooses, whatever be the nature of the Leonards, in his Vendors and Purchasers (chapter 15, section 1, thing to which it relates ; and the latter is really meaningless, 14th edition), joins issue on several important points with the for it is clear one man cannot bind another in a contract by opinions of the Real Property Commissioners as embodied in their merely naming him. A better reason is given for the second Third Report; and the question whether the burden of a covenant, rule when it is remarked that the assign takes the benefit of not being a covenant in a lease, can ever run with the land at law the lease and so should bear its burden. But this, as was seen has been a matter of keen discussion and of conflicting decisions. in Minshull v. Oakes, proves too much; for it applies equally Some of the controversies which were too grave for argument to whether the assigns are or are not named in the covenant. In settle have been decided by the Legislature, and in particular the Smith's Leading Cases it is suggested that when the thing is Conveyancing Act has robbed “privity of estate” of much of its in futuro the assign only gets the benefit of it at his own expense, potency. But more serious inroads have been made by equity, and so, some special reason being wanted for binding him in this and nearly all the recent cases have depended on the doctrine of case, it is found in the use of the word assigns. But this is notice. When a contract has been entered into with regard to clearly only a good reason after the rule has been established, and land, and a man takes that land with knowledge of the contract, when it has become the custom for intending assigns to peruse the then he will be restrained in equity from doing anything original lease ; a reason for the continuance of the rule, not for its in violation of it. This being so, it is often superfluous establishment. At the present day an assign who finds himself to inquire if the covenant runs with the land at law; equity, mentioned knows that he is to be bound, and it is this knowledge which looks at the conscience of each successive owner, is which really makes him a party to the contract. The principle careless as to whether the subtleties of privity of estate have is, therefore, that an assign is bound as of course if the thing to been duly satisfied. Nevertheless, the cases are numerous in which the covenant relates is already in existence for his benefit ; which a knowledge of the common law and the statute law is but if he has himself to incur the cost of calling it into existence, essential, and it is proposed in this and following articles to then he is only bound because the use of the word assigns makes attempt a systematic view of the whole subject.

him aware of the obligation he is incurring: In the first place, it is necessary to distinguish covenants in But, however well established the distinction may be, and it leases from all others. The peculiar relation between the rever- has been as firmly settled since Minshull v. Oakes as it was before, sioner and the occupier renders it necessary to take them by its justification is not easy. The following is the opinion the themselves, and it has been emphatically laid down that they are Real Property Commissioners passed upon it :governed by considerations of their own. Accordingly we shall " It appears to us that these distinctions are little else than treat of these first.

artificial. They lead to subtleties, and, in our opinion, may be I. Covenants between lessor and lessee.—The peculiarity here usefully abolished; and, with reference to leases and all covenants lies in the fact that each party has an estate in the same land, and entered into by the lessees, we think it should be enacted that all the covenants are entered into for the purpose of governing their such covenants, of whatever nature and for whatever purpose, unless respective interests in regard to it. The estate of the lessor is his an intention to the contrary be expressed, or is to be inferred from reversion ; the estate of the lessee is his interest under the lease; the instrument, should be binding on every assignee of the termbut the law here, as elsewhere, fastens on the tangible nature of (Third Report, p. 46). the estate which involves actual possession, and while the coven This recommendation, however, has never been carried into ants of the lessor are said to run with the reversion, the covenants effect, and the rule of the common law, as settled by Spencer's of the lessee are said to run with the land. If, however, we case, still remains for the mystification of the uninitiated. Its remember that it is not with the land as such, but with a particu- application, too, is by no means easy, and it is only by a careful lar leasehold interest in it, that they run, the matter will become comparison of the cases that we can decide whether a particular much clearer.

covenant relates to a thing in esse or a thing in futuro, or whether We must distinguish now the covenants entered into by the it does not concern the land at all, but is merely collateral. A lessee from those of the lessor, and in each case we must trace the good example of this is afforded by Williams v. Earle (1868, burden or obligation and the benefit of the covenant, inquiring 3 Q. B. 739), where, in considering whether a covenant not to whether they run with either interest into the hands of successive assign ran with the land, it was thought necessary to emphasize owners of it.

the fact that assigns were mentioned, although it seems clear that (a.) Burden of covenants by lessee.—The burden of the covenant this did not refer to anything on the land not yet in existence, is here, of course, upon the lessee. Originally binding on him but to be made at the lessee's expense (see, too, West v. Dobb, 4 personally, we have to consider when it will bind also those to Q. B. 637 n. (1)). whom he assigns his interest. This depends upon various subtle But, after it has been settled that the covenant is capable of ties introduced, or at least defined, by Spencer's case (1583, 1 Sm. running, we still have to satisfy the requirement of privity of L. C. 68), and we have to consider both the relation of the estate. It will only bind those who take the very estate of the covenant to the land and its form. As regards the former, original lessee. Another man may enter and take possession with it may concern something already in existence on the land, or the assent of the lessee, but till he has taken an assignment of something only contemplated to be made or done, or it may be the lease he is not bound. Thus, in Moore v. Greg (1848, 2 Ph. collateral—that is, it may not concern the land at all. As regards 717), M. leased to T. for twenty-one years, and T. deposited the its form, it may be entered into by the lessee for himself and his lease with G. by way of equitable mortgage. Afterwards G. took representatives only, real and personal, or it may purport expressly possession. Here Lord Cottenham held that G. was not liable on to bind the assigns. The rules in each of these cases are briefly the covenants. The mere possession went for nothing unless under as follows:

a legal title. The court would not force a mere depositary of the (i.) When the covenant relates to a thing in esse, it is inde- lease to take a legal assignment, and so render himself liable on

pendent of the form ; that is, it binds the assigns whether the covenants, and till then there was no privity by contract or named or not.

otherwise. The same principle was enforced in Cox v. Bishop (ii.) When it relates to a thing in futuro, it binds the assigns (1857, 8 De G. M. & G. &15). In this case the lessee had only when they are named.

covenanted to work mines. He agreed to assign to B., who (iii.) When it is collateral, it never binds the assigns—i.e., in entered into possession, and afterwards ceased to work. It was no way can it be made to run with the land.

held that, as neither possession nor an equitable assignment gives The reasons given by Lord Coke for these rules are not very any legal right, so there was no reason for fixing the burden of

the covenants on B. An assignment of an agreement for a lease formed, notwithstanding that general liberty to apply is reserred creates no privity of contract between the lessor and the assignee, (Re Mansel, Rhodes v. Jenkins, 33 W. R. 727), the trustees can and the equitable assignment of a lease has no greater effect. The act without leave of the court. covenants could only run where there was privity of estate. Conveyances by mortgagees. It will be remembered that a mortWest v. Dobb (1869, 4 Q. B. 634) also was decided on the ground gagee in fee has a legal interest which at law can be taken under that there had never been any actual assignment of the term. an elegit, or by process at the suit of the Crown; and that a

Thus far we have treated of the matter as it stands at law ; registered judgment against a mortgagee gave a charge under 1 & but, as we have already remarked, equity introduces different con- 2 Vict. c. 110, s. 13, on his beneficial interest (Harris v. Davison, siderations, and these apply to the covenants in a lease. The doc- 15 Sim. 128 ; Younghusband v. Gisborne, 1 De G. & Sm. 209; trine of notice is quite independent of privity of estate. This Russell v. McCulloch, 1 K. & J. 313). It followed that it was has been chiefly useful when a lessor has wished to restrain a sub. necessary to search for judgments against a mortgagee or a person lessee from violating the covenants in the original lease. Of entitled to any pecuniary charge on land on any dealing with his course the sub-lessee does not take the estate of the first lessee, beneficial interest. In order to obviate this inconvenience it was proand hence, as there is no privity of estate, the covenants do not vided (18 & 19 Vict. c. 15, s. 11) that hereditaments that have become bind him at law. But, if he has notice of them, equity will re- vested in a purchaser or mortgagee for value shall not be taken in strain him from violating them. It is not necessary to inquire here execution on a judgment against a mortgagee paid off at or before into the nature of notice and what amounts to constructive notice. the conveyance, or in execution at the suit of the Crown against a The latter point was considered in Fielden v. Slater (1869, 7 Eq. prior mortgagee who was a debtor or accountant to the Crown and 523). But it was well settled in Parker v. Whyte (1863, 1 H. & was paid off at or before conveyance : see this section discussed M. 167, 32 L. J. Ch. 520) that a sub-lessee is bound to inquire Dart. V. & P. c. xi., 8. 2. into his leszor's title and has notice of covenants contained in his The practical result is that, where a mortgagee sells for more lease. In Clement v. Welles (1865, 1 Eq. 200) a distinction was than the amount of his debt, or, apparently, even if the sale taken, on the ground that the covenant was first contained in a realizes part only of his debt (see Dart. loc. cit.), or concurs mesne assignment, and not in the original lease from the freeholder. in a sale by the mortgagor and is to be paid off out of the But it was held, by Romilly, M.R., that this circumstance made no purchase-money, no searches for judgments, executions, Crown difference, and certainly not where, as in the case before him, the debts, or Crown executions against him is necessary. Searches, Bub-lessee had constructive notice.

however, for lis pendens ought to be made against him; and, if he is not fully paid off, searches for judgments and Crown debts, where necessary, and for executions, both at the suit of a subject and the Crown, ought in strictness to be made. It is said-Dart V.

and P. c. xi., s. 2—that "doubts may be suggested whether CONCERNING SEARCHES.

18 & 19 Vict. c. 15, s. 11, provides for the simple case of pay(XXII.) WHAT SEARCHES ARE USUALLY MADE. ing off a mortgage without reference to a sale or re-mortSEARCHES AS AFFECTED BY THE INTEREST OF THE VENDOR. (2.) gage, or for the case of a transfer where the mortgage is not

Purchaser paying purchase-money but not taking conveyance. - paid off, but the debt is assigned and kept on foot, as is often desirIn favour of a purchaser or mortgagee whose money is paid, or

able even upon a sale; or for the case of judgments against a of a person who has contracted to purchase (ante, p. 4), the court of the land, although the purchase-money is received by the first

puisne mortgagee, whose concurrence is required to a sale of part will not allow a subsequent judgment creditor of the vendor or mortgagor to touch the legal estate : Finch v. Winchelsea (1 P. W. incumbrancer; or for the case of a mortgagee releasing part of the 278); Burgh v: Frances (3 Swans. 536n); the reason apparently land in consideration of a substituted security being given for the being that the judgment creditor has no specific lien on the land? debt, or in reliance on the sufficiency of his remaining security.” Averall v. Wade (LI. & Goo., at p. 262): see ante, p. 73.

It is apprehended that these doubts are not felt by most pracTrustees for sale.—Searches for improvement charges must be titioners to be of weight, and in every case of a conveyance by a made against the tenant for life. If his consent to the sale is not mortgagee searches for lis pendens alone are usually made against necessary, no other searches reed be made against him, but if his him (sec Wolstenholme and Turner Conv. Acts, p. 141). This pracconsent is necessary, the same searches, except for judgments, must tice may possibly be supported by the following considerations : be made against him as if he was owner in fee. Searches for lis In every case in which a mortgagee conveys part of the land pendens, and if the property is situated in Middlesex or Yorkshire, comprised in his security, the transaction amounts to his being searches in the county registry, must be niade against the trustees paid off and giving a fresh loan on the land retained by him: if he It should be remembered that, if the court has authorized the transfers the mortgage debt so as to keep it alive, he is really paid tenant for life to exercise the powers of sale conferred by section off, so that in each case the transaction appears to fall within the 63 of the Settled Land Act, 1882, by an order under section 7 of meaning of the Act. the Act of 1884, which is in force only while registered as a lis

Where the mortgagor concurs in a sale by the mortgagee as a pendens against the trustees, no sale can be made by the trustees conveying party, all the same searches should be made as if he without the consent of the tenant for life (see section 56 of the

was the vendor. When the mortgagee sells under his power of Act of 1882), and in this case the same searches should be made sale no searches need be made against the mortgagor during the against him as if his consent to the sale was required by the time after the date of the mortgage deed, except for improvement settloment.

charges, which, generally speaking, take priority of mortgages in Trustees having a power of sale.--In this case, if there is a

existence at the time of their creation. tenant for life, his consent is necessary to the sale (see the Settled

It appears advisable, however, to inquire whether any writ or Land Act, 1882, 8: 56), and therefore the same searches ought to process of execution has been issued against the mortgagee under be made against him as if he was owner in fee : ante, p. 198. on which either the land or the mortgage debt can have been actually a sale by the trustees before 1883, if the consent of the tenant for

seized before completion. life was not required, no searches had to be made against him,

MORTGAGES. except for improvement charges; if his consent was required, the same searches had to be made against him as if he was owner in the possible exception of those for improvement charges, &c., if the

Searches on a mortgage will be same as those on a purchase, with fee. In all cases searches must be made against the trustees for security is ample. lis pendens, and, if the property is situated in Middlesex or York On the transfer of a mortgage, searches for lis pendens must be shire, in the county register. TrusteesLis pendens.—It should, perhaps, be observed that, ruptcies, and if the mortgagor is a party the same searches must

made against the mortgagee, and if thought necessary for bank; although the commencement of an action to administer the trusts be made against him as on a mortgage by him. of a settlement prevents trustees from exercising a trust or power of sale without the leave of the court, even if they contracted to convey to the mortgagor on being paid off without making medias

It should, perhaps, be noticed that a mortgagee can safely re33 Beav. 414); still, if the action is dismissed (Drayson v. Pocock, The mortgagor must, however, search forlis pendens against the 4 Sim. 283), or if all the objects of the action have been per- mortgagee.

memoran.

&c.

matter.

case.

&c.

Amount

memoran

ON SEARCHES AT THE CENTRAL OFFICE.
The searches usually made at the central office—namely, for

CORRESPONDENCE. judgments, lis pendens, Crown debts, executions, and annuities

THE REMUNERATION ORDER. are confined to four books. One book contains judgments, revivals,

[To the Editor of the Solicitors' Journal. decrees, orders, rules, and lis pendens ; another Crown debts and

Sir,- In perusing the recent decisions on the question of solicitors' accountantships to the Crown; another executions; and another remuneration for preparing leases and agreements, I have been much annuities and rent-charges. Each book contains entries under the struck with the fact that, under the scale, solicitors may be required surname of the debtor, stating also his Christian name, usual or to carry on the business of their clients at a decided loss, without inlast-known place of abode, title, trade or profession, and the further cluding the ordinary office and establishment expenses. I am sorry particulars contained in the subjoined table:

to perceive that her Majesty's judges, in the cases referred to, expressed no regret that the effect of the decisions would be to involve

the unfortunate solicitor in almost certain loss. 1st Book. Date when Court. Title of Date of Amount of

Probably it may be thought that the scale in other cases so judgment, cause or debt, damages, liberally remunerates the solicitor that he can afford to transact a dum left.

costs, &c.

large aniount of business at a loss to himself. But this is not the 2nd Book, 'Do. Date of Do., and Do.

Even in my somewhat limited experience it too often happens obligation, name of

that the solicitor is practically unable to charge his client with the office.

full scale costs, not because the scale is too high, but because the

business transacted has been of a simple and brief character. A 3rd Book. Date writ

Name of

Solicitor. client looks at the amount of business actually done by his solicitor, of execution creditor. of debt.

and does not like to pay a larger remuneration, though warranted registered.

by the scale, than the nature of the business, irrespective of pecuniary

value, really justified. Hence it comes about that the solicitor does 4th Book. Date when Date of Annual

not derive the benefit possibly contemplated by the judges.
deed or
sum to be

Is a solicitor, directly a client enters his office, to thrust into his
dum left.
bond. paid.

hands a notice that his charges will be made under schedule 2 of the

Remuneration Order, before the solicitor has the least notion of The Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 2, author- what the business is likely to involve? In these days agreements for izes official searches to be made in the central office for entries of leases and leases are very often of a complicated character, and “judgments, deeds, or other matters or documents whereof entries be foreseen. In most cases the scale does not pay, unless there is a

involve long negotiations and much trouble, which are impossible to are required or allowed to be made in that office by any Act large premium paid by the lessee, but even then the lessee's solicitor described in Part I. of the 1st schedule to the Conveyancing Act, cannot claim any extra charge. 1881, or by any other Act.” Rules of the Supreme Court for the I have not long entered the profession, but I shall have to gain my purpose of putting this Act into operation were made in December, livelihood by it, and I shall not be in a position to offend any clients 1882.

with whose business I may be favoured, nor shall I be able to work Official searches are made in pursuance of a requisition by the for nothing. I have always thought that the Councii of the Incorporperson requiring the search, accompanied by a declaration in the ated Law Society did their best to protect the interests of the proprescribed form as to the purposes of the search ; a certificate of fession, and I shall watch with interest to see whether they will go search is filed in the office, and an office copy is delivered to the manner, address themselves to provide a remedy for the grievance

to sleep on this question, or whether they will, in a wise and vigorous person requiring the same.

caused by the decisions referred to, possibly right in point of law, The principal subject-matters for which official searches can be but absolutely wrong as a matter of morality and general practice. made are (I) deeds and documents enrolled in the Enrolment Office The council have undoubted power and influence, and I confidently within two years of the time of search: see R. S.C., 1883, ord. hope that, supported by the countenance which your valuable LXI. r. 13. (2) Bills of sale. (3) Certificates of acknowledg- journal has ever given to the promotion of the just interests of the ments of deeds by married women, judgments, lis pendens, &c. profession, they will not be found wanting, (4) Crown debts and accountantships. (5) Executions. (6) ventured to express, notwithstanding that I am, as I sign myself,

I trust that you will permit the insertion of the views I have Annuities and rent-charges.

Jan. 25.

AN ARTICLED CLERK. Provision is made by the Rules of December, 1882, for making a supplemental search in any name already searched against to a date not more than one calendar month subsequent to the date of

FORM OF MORTGAGE BILLS OF SALE. the certificate, and for indorsing the result on the original certificate and any office copy thereof.

[To the Editor of the Solicitors' Journal.] Sir,- In your excellent series of articles “ On the Form of Mortgage Bills of Sale,” which, if carefully followed, should prove of much use

to the profession, owing to the multiplicity of decisions thereon, REVIEWS.

there are a few slight inaccuracies and omissions which I happen to

have noticed. BANKRUPTCY.

Under “maintenance of the security,” at p. 196, it is stated that a THE BANKRUPTCY Act, 1883. By WILLIAM HAZLITT, Senior covenant to deliver to the grantee the receipts for the rates and taxes

Registrar in Bankruptcy, and RICHARD RINGWOOD, Barrister-at of the place where the goods were, vitiates the instrument. It law. SECOND EDITION.” Edited by RICHARD RINGWOOD. Stevens should have been said that, in the opinion of Fry, L.J., in Davis v. & Haynes.

Burton, as reported in 32 W. R., ut p. 424, the grantee must not be works. It does not pretend to be a complete treatise on the law of comply with a verbal demand for the production of such receipts, as the

This little book will be found more useful than some more pretentious enabled, by the bill of sale, to seize the goods upon the failure to bankruptcy, but appears to be intended as a handy book of reference Bills of Sale Act, 1882, provides for such a demand being in writing. Preface that every decision on the Bankruptcy Act, 1883, has been safely inserted in bills of sale ; for Cave, J., says, " The Act prescribes inserted, and we find that it is substantially correct, the latest case

no particular form of the power of sale. That is left to the parties.” cited being Re Underhill (W. N., 1886, Nov. 27).

It might have been added that, in the opinion of Bacon, V.C., in The book contains the Bankruptcy Act, 1883; and the Bankruptcy Ex parte Pearce (32 W. R., at p. 139, 25 Ch. D. 657), a power to andere a selection from the County Court Rules, 1886 ; judicial orders renders a bill of sale impeachable, and, further, that the provision orders and forms under the same Act; scale of solicitors" costs; "the and, if the same are not repaid, seize the goods, vitiates the bill of the Debtors’ Act, 1869, with notes ; and the Bills of Sale Acts, 1878, Receiver v. Tailby (35 W. R. 91, 17 Q. B. D. 88) must not be coveri ended as to fees and percentages under the Bankruptcys Act, 1883; sale : Bianchi va Oljord (17 Q. B. D., at p. 487).

When book debts are part of the subject of the bill of sale, Official looked, nor, when setting out the consideration on the substitution of

a new for an old bill of sale, Ex parte Nelson, Re Hockaday (ante, p. *** Pressure on our space compels us to hold over two letters 203).

A. R. W. and other matter.

Jan. 26.

WATKINS v. EVANS-O. A. No. 1, 26th January.
CASES OF THE WEEK.

BILL OF SALE-VALIDITY-POWER OF SALE-MORTGAGE-MONEY PAYABLE

IN ONE INSTALMENT-CONVEYANCING Act, 1881, ss. 19, 20-BILLS OF THE BERNINA-ARMSTRONG AND OTHERS v. MILLS AND SALE Act, 1882, ss. 7, 9, 13-FORM IN ScheduLE. OTHERS-C. A. No. 1, 9th November and 24th January.

The questions in this case were whether a bill of sale, given as security COLLISION -- NEGLIGENCE IDENTIFICATION OF PASSENGER WITH THOSE IN for money, was valid, and whether, if it was valid, the grantee had CHARGE OF THE NAVIGATION OF THE SHIP.

power to sell the chattels comprised in it. The bill of sale was given on

the 13th of March, 1886, and it was in the form given in the schedule to the This case, which was argued on November 9, raised an important ques. Act of 1882, with the addition of a covenant by the grantor to insure the tion as to the right of sailors and passengers on board a ship injured by chattels against fire, and to produce to the grantee the receipts for the the negligent navigation of another ship, but herself guilty of contributory premiums. The grantor covenanted to pay the principal sum secured, negligence, to recover damages from the owners of the other ship. It together with the interest then due, on the 13th of April, 1886, and alsó was an appeal from the decision of Butt, J., upon a special case. so long after that day as any principal money should remain due to pay There were three actions brought under Lord Campbell's Act, by interest thereon half-yearly on the 13th of October and the 13th of April the personal representatives of John Armstrong, Thomas Owen, and in every year. Neither a power to seizo nor a power to sell the goods Moses Toeg respectively against the owners of the steamship Bernina to was expressly given. The principal and interest due on the 13th of April, recover damages sustained by the deaths by drowning of these persons in 1886, were not paid, and on the 9th of June the grantee seized the goods consequence of a collision between the steamship Bernina and the steam

and threatened to sell them. On the 23rd of June the grantor issued the ship Bushire. Both vessels were to blame for the collision. At the time writ in the action, claiming an injunction to restrain the grantee from the collision took place John Armstrong was one of the crew of The selling the goods, and on the same day an interim injunction was granted Bushire as first engineer, but was off duty and had nothing to do with the by Day, J., which was on the 29th of June extended to the trial of the navigation of that ship. Thomas Owen was also one of the crew as second action. The Divisional Court (Field and Wills, JJ.) affirmed the order. officer and was directly responsible for the negligent navigation of The The appeal was heard in August, 1886, but judgment was not delivered Bushire. Moses Toeg was a passenger on board The Bushire, and had till to-day. nothing to do with her navigation. The questions for the opinion of the THE COURT OF APPEAL (Lord Esher, M.R., and Bowen and Fry, court were (1) whether the defendants, in each of the three cases, were L.JJ.) reversed the decision. It was contended that the bill of sale was responsible for the damage sustained by the respective plaintiffs ; (2) invalid, because it provided for the payment of the principal of the whether, if the defendants were liable in either or all of the cases, they mortgage debt in one sum, whereas the statutory form provides for the were liable for the whole of the damages sustained or for a moiety only. payment of the mortgage debt in “equal instalments." It was also Butt, J., considered that he was bound by the authority of Thorogood v. argued that the grantee had not any power of sale. Fry, L.J. (who Bryan (8 C. B. 115), in which the principle was laid down that a passenger delivered the judgment of himself and Buwen, L.J.) said that the covenant is so far identified with those in charge of the vessel or carriage in which to insure and to prodnce the receipts for premiums did not go beyond he is that he is precluded by contributory negligence on their part from the liberty reserved by the statutory form. And, as to the stipulation for maintaining an action for injuries received by him from a collision with the payment of the entire principal in one sum, the statutory form conanother carriage or vessel. He therefore held that the defendants were not tained in brackets the words (or whatever else may be the stipulated times or liable in any of the three cases, and he was also of opinion that the time of payment). The words“ time of payment” contrasted with the cases did not come within the Judicature Act, 1873, s. 25, sub- plural times," shewed that a single payment was admissible, and that

From his decision the plaintiffs appealed, and it was contended on their behalf that the case of Thorogood v. Bryan could not be portions. No objection could, therefore, be sustained, on this ground,

there was no obligation to divide the repayment into any number of equal upheld.

to the validity of the bill of sale. As to the power of sale, the decision THE COURT (Lord Esher, M.R., LINDLEY and LOPES, L.JJ.) now of the majority of the Court of Appeal in Re Morritt (ante, p. 143) had delivered judgment, overruling, the decision in Thorogood V. Bryan. Lord laid down this rule, that the power of sale given by the Conveyancing Esher, M.R., after most elaborately reviewing the English and American Act, 1881, applies to a bill of sale in the statutory form, unless, under decisions on the point, said that he could not see any principle on which the power to add clauses for the maintenance of the security, some other Thorogood v. Bryan could be supported. The proposition maintained in provision was introduced which shewed that the power of sale given by it was essentially unjust and inconsistent with the recognized propositions the Act of 1881 was unnecessary, and that a power to seize, with the of law. The question now came for the first time before the English power of sale which thereupon arose, was such a provision, and therefore, Court of Appeal, although from the time of its publication it had been repelled the introduction of the statutory power of sale. In the present constantly criticized. The preponderance of judicial and professional case there was no express power to seize, and no other provision which opinion (with the exception of the weighty opinion of Lord Bramwell), shewed that the statutory power of sale would be unnecessary; conboth in England and America, was against the case, and it must therefore sequently, the bill of sale, by force of the Act of 1881, carried with it a be now overruled. The personal representatives of Armstrong and Toeg, power of sale, but subject to the fetters imposed by section 20 of that who were in no way responsible for the negligent navigation of The Bushire, Act and by section 13 of the Act of 1882. The interest which became would therefore be entitled to judgment, but in the case of the representa- due on the 13th of April had, on the 23rd of June, been in arrear and tives of Owen, who was himself in part directly responsible for the negligent unpaid for more than two months, and therefore the power of sale was navigation, the appeal must be dismissed. His lordship agreed with Butt, then set free by section 20 of the Act of 1881. And more than five clear J., that actions brought under Lord Campbell's Act were not admiralty days had on the 23rd of June elapsed since the seizure of the goods, and, actions at all, and were not touched by the Judicature Act, 1873, s. 25, sub- consequently, section 13 of the Act of 1882 permitted their sale. At the Lord Esher, M R., but said that they considered the case so important in capable of being exercised, and the injunction could not be sustained. overruling a decision of such long standing as Thorogood v. Bryan that they Lord Esner, M.R., agreed' in the result. But he retained the opinion had each written separate judgments, which they read, and which were to which he and Lopes, L.J., had expressed in Re Morritt, that the Act of the same effect as that of the Master of the Rolls.-Counsel, Bucknill, 1881 had no application to bills of sale under the Act of 1882.-COUNSEL, Q.C., and Nelson ; Sir Walter Phillimore, Q.C., and J. G. Barnes. Edward Pollock - English Harrison. Solicitors, F. Romer ; D. Jones. SOLICITORS, Lowless f. Co. ; Pritchard & Sons.

Re WHORWOOD, OGLE v. LORD SHERBORNE-0. A. No. 2, OPPERT 2. BEAUMONT-C. A. No. 1, 26th January.

20th January PRACTICE-POWER OF MASTER TO STAY EXECUTION PENDING AN APPEAL-WILL-CONSTRUCTION -LEGACY-LAPSE - SPECIFIC Girt to PEER BY HIS R. S. C., 1883, LVIII., 16, 17.

TITLE. This was an appeal by the defendants from the decision of a divisional court (Denman and Hawkins, JJ.), affirming the judge at chambers. The Journal, 587), the question being whether a specific legacy to a petits

This was an appeal from a decision of North, J. (30 SOLICITORS' point raised by the appellants was whether, under ord. 58, r. 16, a master described simply by his title, had lapsed," by reason of the death, that, reading rules 16 and 17 together, he has no power to stay execution date of the will, or whether the gift was to be treated as made to the unless an application has first been made to the court or judge who tried holder of the title for the time being. The will of the testator, made the case, since a master is not “ the court appealed from or any judge on the 8th of October, 1881, contained the following bequest : 1

within the meaning of rule 16. The Court (Bowen and Fry, L.JJ), without calling on the re

bequeath to Lord Sherborne and his heirs my Oliver Cromwell cup, pre

sented to our common ancestress, Dame Ursula Whorwood, for an inconvenience would result from the construction sought to be put will died in the testator's lifetime, in March, 1883. The testator died in upon the rules.

In the Queen's Bench Division courts were differently August, 1884, and by a codicil to his will dated July 6, 1883, he bequeathed constituted almost daily to judges who had heard the case in the first instance. Matters would be furniture, and household effects whatsoever, and all other the contents of difficult to make an application to a court consisting of the same silver and plated articles, jewellery, China, glass, books, pictures, prints frequently on circuit or sitting at the Old Bailey, and if it were necessary my decease, and which are not otherwise specifically disposed of by their had tried the case, for a stay of execution, the greatest confusion would investments belonging to me, and which may be in and about the Couksen, R. V. Williams ; Cock, Qo., and Scarlet. SOLICITORS, Harper testatora nad ne personal acquaintance with Lord Sherborne, and that his Battcock ; Le Brasseur & Oakley.

attention had been called to the announcement of his death in March,

thereof

OF

1883. North, J., held that the cup passed under the gift in the codicil to appointment of a new trustee in his place, and for a vesting order as to Charles Rixom. On behalf of the appellant it was argued that there those parts of the estate which had not been sold and conveyed to purwas a clear intention upon the face of the will that the cup should be chasers. It was contended that there was an “implied trust” within the preserved as an heirloom in the family, and that that intention could only meaning of section 2 of the Act. There was evidence that the secretary be carried out by construing “Lord Sherborne" to mean the person who was suffering from softening of the brain and general paralysis of the was Lord Sherborne at the date of the testator's death. Reliance was brain centres and loss of nerve power, and that he was, and always would placed on Re Harris's Trusts (2 W. R. 689), in which Wood, V.C., held be, unable to attend to or comprehend any business, but that he was not that a gift to “the eldest child of my sister" was a gift to the eldest a lunatic or of unsound mind." North, J., felt a doubt as to his jurisdicchild of the sister at the time of the testator's death, and not at the date tion to make the appointment on petition, and suggested that the comof the will.

pany had better bring an action against the secretary. The present action The Court of APPEAL (COTTON, LINDLEY, and Lopes, L.JJ.) affirmed was accordingly brought by the company, as plaintiffs, aga the secrethe decision.-CounsEL, Cutler, Q.C.; Phipson Beale. . Solicitors, Aldridge tary, as defendant, claiming a declaration that the defendant was a trustee & Co.; John Graham.

for the company of all the land which had been conveyed to him, except

the plots which had been sold and conveyed to purchasers; that he might PHILLIPS v. ANDREWS-Kay, J., 20th January.

be removed from being trustee and a new trustee appointed in his place, PARTITION-PROCEEDINGS WHERE SERVICE OF NOTICE IS DISPENSED WITH-

and an order made vesting the property in the new trustee. ADVERTISEMENTS–PARTITION Act, 1876 (39 & 40 Vict. c. 17), ss. 3, 4, relief claimed. He thought that the evidence as to the condition of the

NORTH, J., declined to make a vesting order, but granted the other SUB-SECTION 3.

trustee's health was, in substance, the same as the evidence as to the In a partition action an order for inquiries and sale in certain events condition of the trustee in Re Dewhirst's Trusts (33 Ch. D. 416), and in had been made, the property had been sold, and the chief clerk had that case the Lords Justices appeared to have considered tbat the trustee certified the persons interested, of whom one had not been heard of for

was a person of unsound mind, and that a vesting order should be made twelve years, and that service upon him had been dispensed with. It in the lunacy jurisdiction. His lordship therefore thought that in the appeared that no attempt had been made to give notice of the pro- present case application ought to be made to the Court of Lunacy for a ceedings to him by advertisement. It was now proposed to carry vesting order.-COUNSEL, S. Beddall; Micklem. SOLICITOR, F. J. Mann. over his share to a separate account and distribute the rest of the estate.

Kay, W., said that, under the Act, the court had no discretion. The Re THE DARLINGTON FORGE CO.--North, J., 21st January.
order dispensing with service should have provided for advertisements. COMPANY- RECTIFICATION REGISTER-SHARES ISSUED TO VENDORS AS
There would be no distribution for six months, and then only upon
application to the judge personally, and advertisements must be issued

PARTLY PAID-UP-OMISSION TO REGISTER CONTRACT- COMPANIES Act,

1862, s. 35-COMPANIES Act, 1867, s. 25. forthwith in such form and number as should be settled by the chief clerk.-COUNSEL, Seward Brice, Q.C., and Manby ; Methold. SOLICITORS,

This was an application on behalf of all the shareholders in this comBoxall g Boxall, for Freeman, Gell, & Co., Brighton; Emmet, Son, f Stubbs.

pany to rectify the register of members, for the purpose of correcting an

oversight which had been made on the formation of the company in not WICKS v. WICKS--Chitty, J., 21st January.

registering a contract previously to the issue of the shares, which were issued

as partly paid in consideration of the assets of an old partnership being PRACTICE-ADMINISTRATION, ADDING PARTIES—INFANTS BORN AFTER Ad- made over to the company. The company was formed in 1873 to take MINISTRATION JUDGMENT-REFUSAL OF PLAINTIFFS TO ADD AS PARTIES over the business of a then-existing firm. All the shares were issued to APPLICATION BY DEFENDANTS—R. S. C., 1883, XVII., 2, 4.

the partners or their immediate friends. No price was given for the This was an ex parto application for an order under R. S. C., XVII., goodwill of the business. The other assets were valued at å sum which 4, for leave to add parties to an action. It appeared that the action amounted to £78 a share on the 770 shares into which the capital of the was instituted by tenants for life under the will of a deceased testator company was divided. The nominal value of the shares was fixed at £100 against the executors and trustees of the will for administration of his each, and 770 shares, with £78 per share paid up, were issued to the five estate. The usual administration judgment was made in 1881, and the partners in the old firm and three nominees, in proportion to the interest chief clerk's certificate being made in 1886, the action had been set down of the partners respectively in the old business, but no contract for the on further consideration. After judgment, children being born who issue of the shares as partly paid up otherwise than in cash was registered, were interested under the will and necessary parties to the action, and

as required by section 25 of the Companies Act, 1867, nor was any such various proceedings in the action having been taken subsequently to their contract, in fact, entered into, and the result was that, in the event of a births, application was made by the defendants to the plaintiffs, subse- winding up of the company, the shares would have to be treated as quently to the chief clerk's certificate, to add certain of the infants as wholly unpaid. The shareholders now moved to have the register of parties, þut this the plaintiffs declined to do. The defendants having shareholders rectified by striking their names out, and that a contract presented a petition for an order of course under ord. 17, r. 4, for the con might be registered and new shares issued to them. tinuance of the proceedings as between the plaintiffs and defendants and

NORTH, J., said that the object of the motion could be obtained by a

But he certain of the infants, an order to that effect was made by the registrar, voluntary winding up and a reconstitution of the company. the petition containing an allegation of the plaintiffs' neglect to apply thought he should be able to accede to the application on two conditions. A similar petition having been presented by the defendants afterwards to The existing debts of the company must be provided for-he did not mean another registrar with regard to the remaining infants, the registrar actually paid; and the contract which it was proposed to register must declined to make the order on the ground that such order could not be produced to him. The motion must stand over to allow these two things be made of course on the petition by defendants after judgment in an

to be done, and he should probably then grant the application.-COUNSEL, action for account, even if the plaintiffs refused to apply for an order ;

Cozens-Hardy, Q.C., and E. Beaumont ; Chadwyck-Healey. SOLICITORS, but could be made only upon motion on notice to the plaintiffs, and

Munns f Longden. because such an order would have the effect of giving to the defendants the conduct of the action. Peter v. Thomas Peter (32 W. R. 515, 26 Ch. D.

TACON v. NATIONAL STANDARD LAND MORTGAGE 00.181), Birstall v. Fearon (24 Ch. D. 127), and Shepperd v. Hughes (21 W. R.

Stirling, J., 22nd January. 136) were referred to.

R. S. C., 1883, XXVII., 11 - ACTION FOR SPECIFIC PERFORMANCE NOT CHITTY, J., directed that upon the aliegations in the petitions that the CLAIMING DECLARATION OF LIEN-DEFAULT-MOTION FOR JUDGMENT AS plaintiffs had refused to proceed, it should be referred to the registrar to IN DEFAULT of PLEADING. make the usual order on both the petitions, with leave for the defendants

In an action for specific performance the defendant delivered a state. to carry on the necessary proceedings, notwithstanding that they were accounting parties, and that the matter be referred to chambers if any

ment of defence, but neglected to answer interrogatories. The defence difficulty should arise in carrying out the direction of the court. --Counsel, claim being for specific performance and ancillary relief, but not asking

was then struck out. The plaintiff moved for judgment, his statement of Broke Freeman. SOLICITORS, Haines & Clutton.

for a declaration of lien. It was urged on behalf of the plaintiff that he

was entitled nevertheless to such a judgment as that in form 4, Seton on LAND, BUILDING, INVESTMENT, AND COTTAGE IMPROVE. Decrees, 4th ed., vol. 2, pt. 1, p. 1330, which contains a declaration that MENT CO. v. MARTIN-North, J., 15th January.

the plaintiff is entitled to a lien on the hereditaments, with interest at £5 APPOINTMENT OF New TRUSTEE—Vesting ORDER-TRUSTEE OF WEAK MIND-JURISDICTION OF CHANCERY DIVISION—TRUSTEE Act, 1850, s. 34.

STIRLING, J., held that, as the motion for judgment was to be treated as

in default of pleading, the plaintiff was only entitled to such judgment In this case a question arose as to the jurisdiction of the Chancery ! as he claimed. This would not include a declaration that he was entitled Division, under section 34 of the Trustee Act, 1850, to make a vesting to a lien on the property for his purchase-money and interest. There order on appointing a new trustee. Section 34 provides that it shall be would only be the usual judgment for specific performance, with an inlawful for the Court of Chancery, upon making any order for appointing quiry as to damages. - Counsel, Edwin Ward ; 1. T. Eve. Solicitons, a new trustee or new trustees, either by the same or by any subsequent C. H. Moore ; Saunders f Saunders. order, to direct that any lands subject to the trust shall vest in the person or persons who, upon the appointment, shall be the trustee or trustees for such estate as the court shall direct." In the present case the plaintiff company had purchased an estate for the purpose of re-selling it

BANKRUPTCY CASES. in small lots. The estate was conveyed, not to the company, who paid the purchase-money, but to the defendant, who was their secretary, as a

Ec parte GIBSON, Re LAMB—0. A. No. 1, 21st January. some parts of the estate had been sold and conveyed to purchasers, the tomater for them, but no declaration of trust was executed by chimary. After BANKRUPTCY-—Act op BANKRUPTCY-Notice of Suspension of PAYMENT

-BANKRUPTCY ACT, 1883, s. 4, SUB-SECTION 1 (H.). defendant became in a bad state of health, and incapable of attending to business, and the company petitioned under the pausteet allen for the crediton was an act of bankruptcy within sub-section 1 (X.) of section 4 of

per cent.

[ocr errors]
« PreviousContinue »