Page images
PDF
[graphic]

the second point, it seems strange that advice alone should be sufiicient, the donor being so much under the undue influence as to be sure to neglect it. Yet this appears to have been the opinion of the court, although the donor has hardly been restored, as sound principle requires, to the position of a free person. Perhaps we may overcome the diflieulty by observing that she must be capable of exercising her judgment. Although this was not expressly laid down, it is clearly implied by the manner in which the latter part of the judgment was devoted to proving it. We are thus probably left in as satisfactory a position as possible. Undue influence cannot be exactly measured; such a complete subjection of the donor as would leave her without any power of rational judgment must be regarded as due to extreme mental weakness, and then the court would interfere. But provided she is of fair intelligence and able to make a decision, and provided she has independent advice, these are enough to balance any ordinary amount of undue influence; and if the donor chooses to yield to it rather than follow tho advice, she does so freely, and there is no room for repentance afterwards. Such at least appears to be the outcome of the case in question, but a different decision might be arrived at either if the undue influence were shewn to have been exerted with special force, or if the donor had no suflicient intelligence of the transaction to which advice could usefully be addressed. The mere fact of her yielding deliberately to the influence and peremptorily disregarding the advice is no ground for relief.

LORD COLERIDGE frankly admitted in the House of Lords on llfonday the error he had made in allowing Lord GRAVB8 to waive his pnvilege of trial by his peers on the authority of Earl Ferrers’ case (Fostcr’s Crown Law, 138). Earl Fsnai-:ns was in fact tried by the Lords, and by them condemned to death. The points decided by the judges were of quite a different nature, the chief one being the_applicabilityto his ease of a then recent Act “ for better preventing the horrid crime of murder ” (25 Geo. 2, c. 37), which regulated the management of the prisoner after sentence, and, amongst other things, limited his diet to bread and water. But when Lord Connaines went on to justify his decision on general grounds of law, he met with no sympathy from the House, questioning, as he did, the authorities upon which the law is founded in a manner which he would hardly have allowed in an argument before himself. It may be illogical to reason from the words of Magna Charts, as the courts have done, that a. peer in a suit by the Crown can only be tried by his peers, and then to limit this, as the courts have also done, to treason and felony and misprision of the same; but the limitation is well established, and for all lesser crimes a peer is tried by jury. This, however, is quite separate from the general question_ of a peer’s right to waive his privilege, whatever it may be, which is settled by Lord Dacre’s ease (Sir J . Kelyng, p. 56). This is reported by SPELMAN, from whose manuscript Chief J usticc Ki-;i.ri\'u took it. Lord DACILE of the North was indicted for treason at the nssizcs in Cumberland for adhering to the Scots, and was tried by his peers in 1535. “The day before, all the judges assembled to resolve certain questions which might arise upon the said trial, so that if any question should be asked them they might resolve una coca; and one question was whether the prisoner might waive his trial by his peers and be tried by the country, and they all agreed he could not, for the statute of Magna Charta is in the negative: nae super eum ibimue, nisi per legals judieium parium sum-um; this is at the King’s suit.” This decision has passed into the texpbooks and has been settled law ever since (Coke’s Inst. I[., 48 - III Y 30; Hawkins’ Pleas of the Crown, II., 584). Lord Coi.i~iiiinci:, however, doubted it, because the words of Magna Charm jug; quoted are perfectly general, and would include trial for all crimes. But nothing is clearer than the fact that they have been restricted to treason and felony. Mr. Justice STEPHEN in h’ History of th_e Criminal Law, recognizes this without a doubt bu: says that he is unable to give the history of the limitation, (I 162). It would seem, however, he remarks to be as old as 1445 for a statute of that year, after reciting that Magna Chart i vides that no free man shall be punished except b ‘M1 n gm); his peers, while it says nothing of ladies of grcatyegtatgmen E that in trials for treason and felony these latter are toeb BT19; like other peers of the realm. The difficulty may perhgpsnfie

[graphic]

removed if we notice that the trial of noblemen by their peers was not first introduced by Magna Charts. Lord Goxa states that the words legals judicimn are simply declaratory of existing rights (Inst. II., 48), and it is not improbable that such rights referred only to trials for treasons and felonies. At any rate the peers claimed special jurisdiction in these cases and were accustomed to exercise it even over persons who were not peers. In orderto check this a statute of -1 Ed. 3 was passed (Coke's Inst. II., 50) enacting that no peers should be driven to give judgment on any others than on their peers according to the law. But in whatever way treasons and felonies came to be separated from other crimes, there is no doubt as to the existence of the distinction, and, when a rule of law has been so long established, it would be very dangerous to upset it by a literal interpretation of an ancient statute, without regard to existing usages by which the statute was at the time interpreted or which were suffered afterwards to grow up. We might as well go back to the Statute of Frauds and begin over again the costly process of ascertaining its meaning.

In A CASE upon the construction of a will, which came on before Mr. Justice CHITTY this week upon an originating summons, it appeared that some of the counsel engaged had not been furnished with a copy of the will, but had to read from a recital of the will eontained in the agreed statement of facts, which recital was in the third person. Mr. Justice Cnirrr observed that, in cases on the construction of wills, it was very important for counsel to have a copy of the will itself, so that they might be in a position to state to the court the ipsissima verba of the will.

“A WARNING TO MORTGAGEES."

THE decision in Newboulrl v. Smith (33 W’. R. 690, 29 Ch. D. B82; on app., 34 W. R. 690, 33 Ch. D. 127) has occasioned much alarm among mortgagees and their advisers, and in a paper, entitled “_A Warning to Mortgagees," read before the last annual provincial meeting of the Incorporated Law Society, the decision was desoflbed as imperilling “ millions of money belonging to thousands of mortgagees." It is considered, and we shall endeavour to_ shelf’, that there is no ground for this alarm. No doubt the decision ll one that will be followed, but all that it really amounts to is, Wit it is impossible for a stranger to the contract to keep alive a mortgage by making payments--i.e., gifts—-to the mortgagee, and thflty if the mortgagee is paid his interest by a person who states that he is the agent for the mortgagor, the mortgagee must Mwmm that this statement is true, for, if it is not, no payment by the person pretending to be agent will prejudice the mortgagor bl’ keeping the debt alive against him.

The first point in Nswbould v. Smith arose on an equitable mortgage made by C. E. Smithto Newbouldin 1866 by deposit of deeds of M11995 in Montague-stroeot. The debt was therefore a simple contract debt. In July, 1878, C. E. Smith assigned the equity of redemption W B. Smith and S. Smith, “subject to the mortgages and charges thereon.” No entries or evidence of payments were found from February, 1866, to September, 1878, in which month there W115 an entry by Newbould in his books of a receipt by him from C- ESmith, which entry was objected to as not being evidence._ But assuming, as the learned judges did, that this entry was evidence °f 9- Payment by C. E. Smith of interest to Newbould, still. 1°“? before this entry—namely, in 1872-the personal debt from 151Smith by simple contract had been barred, and there only r°1I1""1°d a debt secured on the land bv deposit of deeds, and the land having ceased to be C. E. Smitli’s, no payment by him could keep on foot the mortgage against it. _

The decision turned entirely on the fact that C. E. Smith had ceased to be liable for the debt. Lord Justice Lindley, in hm Judgment. elpressly mentions that the simple contract debt Wffli barred, and that there was no evidence to shew that C. E- smllh made the payment as the agent of the owner of the land. _

The second point in the case arose on a legal mortg"-Be made m 1863 by C. E. Smith to Aldcrson of houses in Franklin-street In‘ terest was paid up to 1866 by N ewbould who up to that time was C. E. Smith’s solicitor. N ewbould continiied to pay the interelt iii“ that time, but the Court of Appeal expressly decided (899 33 ch

[graphic]

Feb. 5, i887. THE SOLICITORS’ IOURNAL. 229

[graphic]

D., at foot of p. 131, and the last paragraphs of the judgments of Lindley and Lopes, LJJ.) that there was no evidence to shew that Newbould was the agent of C. E. Smith in making these payments, so that for all purposes of the Statute of Limitations the payments were never, in fact, made. The case was exactly that put by the Lord Chancellor in Chinm2r_y v. Evans (11 H. L. Cas. 115), that money paid by a stranger to the contract under which it is paid would not have the characteristics and legal quality of payment.

It follows that the decision in Nezobozlld v. Smith does not conflict with Chinrzery v. Evans, or touch the ordinary case of mortgagor and mortgagee when the mortgagor assigns the equity of redemption and afterwards continues to pay interest. He remains liable to pay notwithstanding assignment, and the payment by any person liable keeps alive the debt and security against the land and all other persons liable. This is distinctly decided in Cliinnery v. Evans (a decision of the House of Lords, and not to be overruled), besides other cases. But where the payment purports to be made through an agent, the mortgagee must take care to see that the professed agent has authority to make the payment.

The warning to be drawn is one that we have already given (30 Soucirons’ J OURNAL, 665)—viz., that a mortgagee who receives his interest, according to the common practice, through a solicitor, must take care that the latter is the agent of the person who ought to pay the interest. It can happen but rarely that a solicitor continues to make payments of interest after his client has parted with the equity of redemption, and therefore the risk of a mortgagee’s losing his money under the doctrine of Newhould v. Smith is not very great.

[graphic]

COVENANTS RUNNING WITH THE LAND. (L) COVENANTS IN LEASES (colitinlwd).

(5.) Benefit of covenants by the l¢.uee.—It is curious that, while the common law allowed the assign of the lessee to be substituted for him in bearing the burden of the covenant, it was otherwise when the benefit was sought to be enjoyed by the assign of the lessor. It is doubtful, at least, whether such a transfer was permitted, and, if it was, it was probably only allowed in the case of covenants connected with payment of rent or other services of a similar nature, such as doing suit to the mill of the lessor ( Viv!/an V. Arthur, 1823, 1 B. & C. 410). As, however, the necessity of the transfer is obvious, an opening occurred for the statute 1|?-W, and by this the matter is regulated. The question first became pressing at the time of the dissolution of the monasteries. The reversions upon leases granted by the monks fell into the King’s hands, and were by him regranted, but the regrant did not carry with it the benefit of the covenants entered into by the lessees. To remedy this the statute 32 Hen. S, c. 34, was passed. By this provision was made for the case just mentioned, as well as for that of any other assignment of a reversion by the King. But the important point is that the same favour was extended to grantees of reversions generally, whether the grant was made by the King or any other person. In such case the grantee stands in the shoes of the original lessor, and has the same remedy against the lessees and their assigns that he had. For the time, doubtless, this was found to be a very beneficial change, but it was far from fiflmplete. In order to profit by it the new reversioner must have birth the assign of the old one, and he must also hold the very same reversion.

The first difliculty arose in regard to settlements, where it is Often hard to see how the successive owners of the reversion are “"1811! fi'0_rn each other. But the courts had subtleties to ”meflY this. Thus, where lands were devised to A. for life, remainder to B. for life, with power to A. to make leases, and A. Illflde a lease in favour of C. and then died, the question arose Whether B. could sue upon the covenants in the lease. It was held “P011 the authority of Lord Coke in W hitlock’.r case (8 Rep. 70) that the lease was really granted by the author of the power, and as B. took directly under him, he was an assign within the statute : Ish.crWwd V. Oldknow (1815, 3 M. & S. 382). But the other difliculty Ills more formidable. The covenant only ran with the reversion so long as it continued to be the same reversion as that to which it

[ocr errors]
[ocr errors]

was the pi-ac

originally incident. Hence, if this reversion was destroyed, benefit of the covenants was destroyed with it. This was in tice a serious inconvenience affecting all cases of sub-letting.

Thus, out of a lease by A. to B. for one hundred years. B. grants

an his

underlease of twenty years to C. If now B. surrenders lease to A., the reversion to which C.’s covenants are

incident is gone, and though A. is clearly an assignae from B.,

he

has no remedy upon them. In an early case in Moor of this

kind A. granted his reversion in fee to D., and D. purchased B.’s reversion upon the underlease. This was merged as above in the

[ocr errors]

ersion in fee, and D. was left helpless (Moor, 94). The incon

venience was chiefly felt when the mesne lessee wished to surrender his lease in order to obtain u. new one, and a remedy was applied to this case by 4 Geo. 2, c. 28, s. 6. This, however, was

[ocr errors]

partial and the Legislature failed to see that, if the covenants

to run with the reversion at all they must run with it

y ~ I
re , ' '
'versally, whatever form it may assume; in other words, the

benefit must be available for anyone who has, in fact, the next estate expectant upon the lease in whatever way he has obtained

it.

Till this point is reached the covenants are not properly

incident to the reversion. It is necessary to divide the

wh

ole interest in the land simply into the interest in pos

session and the interest in reversion, and to attach the covenants always to such reversion. Of course this is the simplest case ; there may be several successive interests in reversion one behind the other; we are only concerned with the one immediately expectant on the estate or interest of the covenantee in question. Such a general change was effected by8 & 9 Vict. c. 106, s. 9, but in an artificial and perplexing manner. It was left for the Conveyancing Act, 1881, to go to the root of the matter and make the covenant incident to- the reversionary estate simply, however it has arisen. Thus section 10 (1) enacts, in effect, that the benefit of a covenant in a lease, having reference to the subject-matter thereof, and which is binding upon the lessee, shall be annexed to the reversionary estate in the land immediately expectant on the term granted by the lease. An important inroad is made, too, upon the old doctrine of privity of estate as between lessor and lessee. According to this the covenant must be made between two parties, each having a legal interest in the land-—the owner of the legal reversion, and the person taking an actual lease. This was a stumbling-block in the way of mort

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

eluded, a matter which the statute of Hen. 8 had left for judicial l . I t

construction. , _

(0.) Burden of covenants by the leuor.—It is probable that the assignee of the reversion had to take it with the burden of any covenants incident thereto. Indeed, had the law been otherwise, it would have been easy for a lessor to have got rid of covenants which proved to be too onerous. But, however that may be, the statutes that have decided when the benefit of the lessee’s covenants shall run with the reversion have done the same for the burden of the lessor's. Thus the statute 32 Hen. 8, c. 34, s. 2, gives the lessee and his assigns the same remedy against grantees o the reversion as he or they would have had against the original lessor. In the same way the Conveyancing Act, 1881, deals with the subject, though in terms suited to the extended powers of limited owners. Thus a limited owner can, in strictness, only enter into contracts which will bind his own limited reversion, but b various modern statutes he is able to do more than this and bindy the reversion of those who succeed him. Hence it is enacted (Conveyancing Act, 1881, s. 11 (1) ) that the burden of a lessor's covenant, made with reference to the subject-matter of the lease, shall be annexed to the reversionary estate immediately expectant on the term granted by the lease, so far, that is, as the lessor has power to bind such reversionary estate. And to make the matter clearer, it is provided that the covenant may be enforced against any person for the time being entitled to the reversionary estate. Thus the same person who takes the benefit of the lessee s covenants has to bear the burden of the original lessor’s. _

(d.) Benefit of covenants by the Iessor.—It appears that the benefit of the lessor’s covenants runs with the land in favour of the assigns of the lessee. This may be gathered from the fourth and sixth resolutions in »SQoencer’s case. The fourth resolution speaks of the covenant for title implied in the words concessi or dcmisi and states that as the assign of the lessee takes the fruits of the land in return for the labour and money he expends on it, so, if evicted, he ought to have the same remedy against the lessor as the original lessee ; and that the lessor has no reason to complain since it is but holding him to the contract which he himself made. The sixth resolution speaks of a covenant to repair bein binding upon assigns of the lessee, and puts it on the ground that the assigns take the benefit of such a covenant when made by the lessor and so should bear the burden of it when made by the lessee. But the matter is made clear by the section of the Conveyancing Act just quoted. It is there enacted that the benefit of a covenant by the lessor, having reference to the subject-matter of the lease, shall belong to the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise.

It will thus be secn that the Conveyancing Act now governs three out of the above four points—viz., both the burden and the benefit of a lessor’s covenants and the benefit of a lessee’s covenants. But as to the burden of a lcssee’s covenant, that is still governed by the common law. While many of the recommendations of the Real Property Commissioners have been adopted, the one which proposed to simplify these covenants has not found favour, and the distinctions of Spencer’: case still survive to startle lessees and promote litigation. This is the more curious as the progress of the law on the other points has been steady in the right direction, and the Conveyancing Act seems to have placed them on a sound basis. It has been recognized that the covenants affecting the reversion, whether by way of benefit or of burden are attached, not to any particular person or to any par-ticula; estate, but to the reversion as such. They are, properly speaking real covenants. They may be entered into by any person who hug power to bind the reversion, and they may be enforced by or enforced against any person who holds such reversion and that whether he be entitled to it at law ‘or in equity. The filrst of these provisions prevents a covenant from being in gross beeause not entered into with a person having a legal estate in the land and the second puts the beneficial owner in the position he ou ht to occupy, while not exempting the legal owner from the dutiges or depriving of the benefits ,of his legal estate. I :11

i 11 0 N10“ contaidedainllliihexe shall treat of covenants other those

[ocr errors][ocr errors]
[graphic]

CORRESPONDENCE. THE REMUNERATION ORDER. |_To the Editor of the Solicitors’ Jom-nal.'_l

Sii-,—Refei-ring to the cases of Re Wilson and Re Sykes and your comments thereon, I shall be much obliged if yon, or your readers, will kindly enlighten me as to my position in the following circumstances :—

In an administration action in the Palatine Court an order was made (inter alia) for the sale of the testator's real and leasehold estate. A proposal was carried in by the trustees for the sale of the testator’s estate, situate at Penrith, and the registrar, in pursuance thereof, ordered the estates to be put up for sa e by auction at an hotel there, and, in the meantime, directed that the conditions of sale (which were long and complicated) should be settled by counsel. As solicitor for the trustees, I attended the sale at Penrith, but, unfortunately, none of the lots sold. I have since negotiated a sale of all the ots to one purchaser for £3,600.

To what remuneration am I entitled ‘the trustees paying the auctioneer’s charges), in respect of the a ortive sale by auction? Clearly I am not entitled to c ergo the scale fee for conductinug the sale by auction. Can I, then, make out my charges under sched e IL, or am I to receive nothing for the reparation of the conditions of sale and attendance at the sale, notliaving elected to charge under schedule II. before undertaking the business ? J UVENIS.

Manchester.

[Clearly under schedule II., for business not, in fact, completed, under clause 2 (c) of the order.—Ei>. S. J.]

PRODUCTION OF RECEIPT FOR PREMIUM ON INSURANCE. [To the Editor of the Solicitors‘ Journah]

Sir,—We should like some of your readers to give us their opinion on the following point :—A client of ours is the owner of freehold ground rents; there is a covenant in the ground lease on the part of the lessee to insure and to produce the policy of insurance to the ground landlord when required. We have for some time been collecting the rents of the property; in our notices there is always a foot-nobe requesting the lessee to produce the last receipt for premium to enable us to see that the insurance covenant is duly performed. This the lessee has for many years neglected to produce. and he has consequently put us to the trouble of writing him several letters requesting him to do so. In consequence of the lessee! persistent inattention to our letters, we at last informed him that We should be compelled to take stronger measures unless he prodlwd the receipt at once; this having no effect, we prepared and 9I"°‘l him with a notice under the Conveyancing Act, stating the breaches of covenant he had committed, and requiring him to remedi H" same and to make compensation for the breach. The notice 511° effect of making the lessee produce the policy and last rece1pt.l>“l' he declined to make any compensation. We thereupon preplml a statement of compensation claimed by our client, which W" made up of the costs of the notice and of the letters We had written, and sent it to him, but without producing any effect herald several letters fromhis solicitors, and ultimately one stating that the?’ would accept service of any process. Our onl remedy now it B69111! to us is to commence an action in the High (hiurt for ejectment,_ M the property is too large for the county court tohavc jurisdiction. but we are unwilling that our client should commence expensive litigation for so small an amount, and yet, at the same time, W9 .d° not feel at all dis osed to sit down calmly and take no more I101?!“ of the matter. gt seems monstrous that the lessee should put us and our client to this expense and trouble, and we are likely to 1"“ continual dificulty in making him keep his covenant in future, find we really should be glad if some of your readers could snggoflli PW course by which we could bring the lessee to book without our client incurring the ex].-ense of instituting an action for ejectinent.

January 27. P. & V

[graphic]

The general meeting of the Irish Solicitors’ Benevolent Association W" held on Monday. The report announced an increase of annual incomfi from £348 5s. to £402 3s., that forty new annual members and two B" life members had been obtained, and that the capital consisted 05 -_'-3301 railway debenture stock. The chairman (Mr. Wilham Findlater), in the course of his remarks, said that: “They found the chairman of the English Benevolent Association stating that only one-fifil} °l l’m°t‘"=l118 solicitors of England were members of the association. - d they _(thc Irish Association) chewed abetter record than that, for he fol"; that in Ulster, out of 314 practising solicitors 72, or near1Y °ne'f°url ' were members of the association. Leiuster carried the palu1- Quid 590 Pfiwtising solicitors there were 281 or nearly a-half» b°l°“5"'g to this association. Out of 279 in isuusw} there were 52, or nwlv °“°' firth, and in Golinaught, the poarggt pl-qvime of ,,11_ sham were 15 members out of 68 sohcitors, that is nearly one-fourth."

[ocr errors][graphic]

BILLS IN PARLIAMENT AFFECTING THE PROFESSION.

Tun following is a list of some of the more important Bills aifecting the

profession which will be brought to the notice of Parliament during the

present session :—

0?! Bill for the repeal of the solicitor's annual certificate duty.—l\Ir. as.

A Bill to provide for the appointment of a public trustee.—Mr. HOWARD Viircsirr.

A Bill to amend the law in matters relating to real estate.—Mr. STAVELBY HILL.

A Bill to amend the Settled Land Acts.—Mr. ELTON.

ABill to regulate the imposition of mining royalties in the United Kingdom.—ll1r. CONYREARB.

A Bill to facilitate the creation of allotments of land.—Mr. Jzsss COLLINGB. _

i Anoither Bill by Mr. Collings to facilitate the creation of small holdings n an .

A Billto enable certain'leaseholders to acquire the freehold of their property by paying compensation or (at the option of the freeholder) a perpetual rent.—Mr. Lawson.

A Bill for the same purpose by Coroner. Huonss.

A Bill to facilitate, on equitable conditions, the conversion of long lfiasfihold tenures of houses in towns into freehold.—Siii J OSEPH

c aims.

A Bill to amend the Commons Inclosure Acts.—Mr. J AMES.

A Bill alter the law relating to the descent of land by the custom of primog_eniture.—Mr. COURTNEY KENNY.

Hit“ Bill to amend the law relating to accumulations.—Mr. COZENS

. nv.

SBA Bill to amend the system of private Bill legislation.—Mr. CRAIG isa.

A Bill to consolidate, simplify, and amend the law relating to Parliamentary elections and for other purposes.—Mr. Howi=:r.i..

A Bill to amend the Parliamentary Elections (Corrupt Practices) Acts. —iiri3gls tgilfllil. t <

exe_nip to a limited amount) personal property of house:l:\ld€!I from seizure and sale under legal process.—Mr. Enwsri Rosam

A Bill to amend the Employers’ Liability Act, l880.—Mr. Boar.

Another Bill for the same purpose by Mr. War. MCDONALD.

A B111 9° grant more extensive powers to oounty court judges in cases of Mgkgllpiltlg-—MIahglpLi;oLL.\Nn.

l amen 1 ' ' 1 - ‘ d_ _Mr' pmwnm‘ e aw relating to agncu tural holdings in Englan

A Bill to amend the administration of the law of income tax.—Mr.

Hvniuian.

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

This was an action against the defendants. as Sheriff of llriiddlesex, to recover the sum of £23 7s. 8d. The sheriff seized in execution certain Roods which were claimed by the present plaintiff uudera bill of sale. The shenfi took out an interpleader summons under ord 57, r. 5, “ calling on the claimants to appear and state the nature and particulars of their °1ll_I11B,” and the claimant (the present plaintiff) made an aflidavit in which he stated that the goods belonged to him under the bill of sale, and ihat_tliere was due and owing to him, under the said bill of sale, the sum of £io0 and interest thereon. The master thereupon made an order that the sherifi should sell the goods, and out of the proceeds of the sale (liter deducting the expenses and rent), should pay to the claimant the flmount of his claim, and the balance to the execution creditor. The Bheriii sold the goods, and the claimant sent him in a further claim for -‘$23 ls. 8d. for costs, charges, and expenses incurred by the claimant in relation the bill of sale, and which was scoured by the bill of sale. :n1° Blleflif refused to pay him this sum in addition to the £750 and mtewatr On the ground that it was not claimed in the aflidavit, and that the master’: order did not warrant him in paying it. The claimant thereupon brought this action to recover that sum, and Lord Esher, l\[.R., P110 tned the case without a jury, held, after an inquiry as to the practice {I1 chambers, that the claim was not limited by the aflidavit, and gave Judgment for the plainti1f_

_TlH! Cover OF Ari-nai. reversed this judgment. Sin J/urns Harman Said that such a practice in chambers was plainly inconsistent with the Tltllefl. Ord; 57, r. 5, did not mean that there should be a vague statement o the claim," but one giving the necessary information upon which the gut" m18ht proceed. The information contained in the affidavit was

iml! information before the master as to the claim. He thereupon made an or_der directing the sheriif to sell and pay the claimant the amount of his “claim.” That meant the claim put forward before the master, which only included £750 and interest. The sheriff was §”°°"1ms1.r not bound to pay the claimant the £23 7s. sa. for costs and _x(l-;°"_5ffl»flBd Bo the action failed. Bower: and Far, L.JJ., concurred.

W.,2Pl5FL, Winch; Cock, Q,.C., and Rose-Imus. Soniciroiis, Cal/ins Q ‘ ""0": W. W. Burcliell.

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

This was an ap cal by the plaintiff from an order of Grove J . in the action to the followin ei’Eect:—“ That all questions in this, adfion be tried by an official regeree, who shall have all the powers of certifying and amending of ajudge of the High Court of Justice, and shall direct Judgment to eentered and otherwise deal with the whole action pursuant to o_rd. 36, r. 50. It was admitted that the order had been made under section 57 of the Judicature Act, 1873, and that the plaintiff had not consented to the making of the order. Several questions of law were raised by the defence and rejomder. The plaintiff now contended that the order was bad, since it referred questions of law to the decision of the official referee.

Tan Cotiir (Lord Esiirn, llI.R., and Far, L.J.) allowed the appeal. The Master of the Rolls said that the case no doubt involved complicated questions of accounts which could be better tried before an offlcial referee than before a jury, but the judge had no power to refer the cause to liim for trial. The questions of fact alone should have been referred. The judge had exceede his jurisdiction in giving the oflicial referee, by this order, power to hear and determine questions of law. FRY, L.J., in concurring, said that, in his opinion, the error arose from the form in which the order of reference had been drawn ufi. A proper form for such an order was provided by R. S. C., Appendix . (No. 33). He regretted to say that the forms given by the ru es were habitually disregarded, to the serious loss of litigants and to the great inconvenience of the Court of Appeal. Tlie form given provided either for all the questions in the action (when they were all questions of fact) or for the questions of fact in the action being referred, and the proper course in the resent case would be for an order to be drawn up in accordance witl? that form, referring the questions of fact for the report of the oflicial refereee. That course was the one contemplated both by the section and the form where there were mixed questions of law and fflfit.-—c0l.'l\‘SEL, Blake Otlgcrs ,Hurpliy, Q.C., and Lniiig. Soircirons, Sharpe, Parkers, j 00.; Field, Roscoe, Q Co.

[ocr errors]
[ocr errors]

This was an original motion for leave to amend a notice 0! appeal. The action was brought for the administration of an estate on the 5th of November, 1886. Bacon, V. C., made an order admitting a claim against the estate. On ihe 23rd of November a notice of appea from this order was served, which stated that the Court of Appeal would be moved on the 27th of November to reverse the order. On the 17th of January, 1887 (the appeal not having come on for hearing), the solicitors of the respondent wrote to the solicitors of the appellant, stating, that they had been advised by counsel that the notice o motion was ad, because it ought to have been a fourteen days’ notice, and adding, “ We presume

on will not prosecute the appeal." On the 29th of January the appellyant served notice of an original motion in the Court of Appeal for eave to amend (if necessary) his notice of appeal by substituting the date “Ttli December” for the date “27th ovember" as the date on or after which the court would be moved. Rule 3 of order 58 provides that “ notice of a peal from any judgment, whether final or interlocutory, or from ii final) order, shall be a fourteen d:ys' notice; notice of appeal from any interlocutory order shall be a four ays’ notice.”

Tan Cour-r or APPEAL (Corroir, Lisnniw, and Lorne, L.JJ.) granted an extension of the time for appealing. Corroic, L.J., _was of opinion that the order appealed from was a final order which required a fourteen days notice of appeal. In his lordship’s opinion the notice could not be amended as asked whcu the day had passed for which it ought have been given. It would have been a different matter if the application to amend had been made before that day had passed. But his lordship thought that leave ought to be given the appellant to given fresh notice of appeal, notwithstanding the expiration of the twenty-one days allowed for nppealilgf. The court had, no doubt, been very strict as to giving leave to apps after the expiration of the time. But in the present case there was a notice on which the court might _have_acted if ilic rcspondent had appeared to it. The appellant must give his frosh notice at once, and he must pay all the costs incurred by the respondent by reason of the informal notice. Li.\'m.si' and Loi-ls, L.JJ., 00l10llX1'6d.—(.10L‘h'ls'BL, .4. Young; Inca, Q.C., and St. Io/in C/er/re. Soniciroiis, Jolm Holmes Q

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

' iiflibert to a l for leave to amend his s ecification by way bllediidblglmer, prozided ‘tgals the specification as ameifded should not be receivable in evidence in the action, and that the costs of, and occasioned by, the application should be the defendant's costs in any event. The costs of the motion to be costs in the action. On behalf of the plaintiff it was urged that these terms were too onerous, and that he was placed in a worse position than if he had discontinued his action, and had commenced a new one after amending his specification.

Tun Cocnr or APPEAL (Cor-rox, LINDLBY, and Lox-es, L.JJ.) afirmed the decision. Co-rros, L.J., said that the terms to be imposed were in the discretion of the judge, and no special ground had been shewn for_not imposing these terms. Section 19 apparently assumed that there might be cases in which it would be right that the amended specification should be received in evidence in the action, and his lordship did not intend to decide that in no case ought it to be receivable, or that the leave must in every case be given only on these terms. Each case must depend on its own circumstances. But, as a general rule, and under ordinary circumstances, these were the proper terms to impose. The plaintifi who made such an application admitted that he had not compllied with one of the conditions on which the patent was granted, and t at, if the action went on, the defendant mig t be able to raise the defence that there was no patent on which the action could be maintained. It would be wrong to allow the plaintiff to get rid of that disadvantage as against the defendant. It might be asked, What benefit would the plaintiff gain by amending his specification if he could not use the amended specification in the action? But there might well be other persons than the defendant as ainst whom it might be most material for the plaintiff to obtain an ameilgment

of his specification, so that he might be able to sue them. It was very desirable to make ate tee ' ' ' ' '

p n s more careful m framing their specifications, which were often very carelessly drawn. LINDLBY, L.J., said that the appeal had been argued on general principles, and the court did not know what the special circumstances of the case were. But he inferred from what the plaintiffs counsel had said that, if the proposed amendment were not made, the action must fail. That would not always be the case when a plaintiff desired to amend his specification by a disclaimer. The court was not laying down the rule that these terms were to be invariably imposed in every application under section 19. But care must always be taken that injustice was not done to the defendant, though the mode of

rotecting him might vary in different cases In th

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

Re THE NEW CITY CONSTITUTIONAL CLUB—C. A. No. 2 29th January. ' COMl‘.ANY—WlNDING L‘I'—LANDL0llD—D1ST}1E§3 1->91], Ray;-_LE'E 0,.COL'll'l‘—O0.\ll"‘ANXE-S Acr, 1862, s. 163. I

This was an appeal from the refusal by Kay, J _, of an a limgiou made by a landlord for liberty to distrain for rent on goods inpgremises occupied by the company notwithstanding an order for the winding up of the company. Section 163 of the Companies Act, 1862, provides that when there is a winding up by the court or under supervision “any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the winding up shall be v_oid to all intents." The applicant had granted a lease of certain premises at a rent of £4,000 a year to a club, called the City Constitutional Club, and the lease contained a covenant not to assign without the consent of the landlord. That club was wound up and its undertaking and effects, including the lease of the premises, was taken pger by the company. The landlord, though he did not formally consent

an assignment of the lease, was party to an arrangement by whim; he recognized the purchase which ha taken place, and the new company agreed to pay him the rent then in arrear ‘ and all the subsequent rent accrmng due under the lease in manner therein provided." It has been held that section 163 does not apply to casr-is of distress by a mere stranger to the company, who has no right to prove for rent in the windIn; up, and In .E.L' partz: Cl¢'m¢'nr*z' (23 Ch. D. 154) Fry, J., held that this rule applied in a case in which the landlord had taken from the com an who occupied his premises a promissory note for the rent and who tllerey fore, had a right of proof in the winding up on that note thou h’ he had no right to prove for the rent as such. In the present cas,e thcg oods in question were pledged to debenture-holders of the company 531- more than their value. Kay, J ., considered that the case was governed b Fiparte Clwzenrr, though he expressed ‘his dissent from that decision y 4.

Ti-in Cover or APPEAL (Cor-ms, Lmntzr, and LOPBS LJJ )-aifi d the decision, on the ground that the goods in question c'ould not time the notice of motion was given by the landlord be considered 8 e of the estate or effects of the company, and that they were not a€el?art from distress by section 163. Cor-ron, L.J., declined to ive a pmcred as to the correctness of the decision in Ex parts Clenilwce g L1,, ny (lpmmn thought that it was somewhat diflicult to reconcile Er a-rb (;;lDLm' L11" some of the other cases, but he would not express :1] L0 »’Y"'"°" with point.—Ooussei., Gmluun Haatin a Q C y pmlon on the

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

r P ) was brought before the Court of 1.

the original petition amended in pursuance of the leave gimu by Nirtli, J ., by entitling it in lunacy.

THE Cuuar (Cori-os, L.J.) took the same view of the case as North, J ., had done, holding that a person whose state of mind was such as the evidence in the present case shewed it to be was a “ person of unsoiml mind" within section 2 of the Trustee Act, and that the jurisdiction to make a vesting order was in the Court of Lunacy. Corrsx, L.J., sail that he had consulted with Lindley, L.J., who said that, upon cm. sideration, he thought he had mrle to: railriei a (ll!\‘Illl'!l7l)l1 lll R1 Phelps‘ Sretlenimt Trusts (31 Ch. D. 35l).—CovxssL, A. Bcailall; illirklem. SOLICITORS, F. J. Mann ,' J. L. G. Powell.

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

This case raised the question whether in an action brought to restrain it patentee from threatening legal proceedings for infringement the plaintiff can obtain an interlocutory injunction without satisfying the court that his manufacture does not constitute an infringement of the defendant's patent. Section 32 of the Patents, Designs, and Trade-Marks Act, 1883, enacts that an injunction may be obtained against the continuance of such threats “ if the alleged manufacturer to which the threats related was not, in fact, an infringement of the legal rights of the person making such threats." The defendant, under a patent taken out in 1885, wuss manufacturer of candle-lamps called “Fairy” lamgi, and early in 1886 the plaintiff entered into negotiation with the defen nt for the purpose of obtaining a licence to use the patent, in the course of which he iuformed the defendant that he could, under an old and expired _pflt€11§. make lamps very similar to the defendant's without infringing bl! patent, and that, if they failed to come to terms, he should do so. The

icence was not obtained, and the plaintiff, who traded under the name of John Walsh Walsh, subsequently manufactured and sold lamps called “ Glow-worm" lamps, which were very similar to the “ Fairy ” lamp!On the 17th of November, 1886, the do end:-int wrote to Mr, Stephenson, a customer of the plaintifi, this letter:—“Dear Sir.—Oaution.—-Walsh e Glow-worm lamps are an infringement of my patent, and agents are now going though the country to get all the evidence they can to take legal proceedings against the vendors —that being the course decided on by [BY solicitors." Upon this letter being brought to the notice of the pl&_\11l15i he brought this action, under section 32 of the above Act, to restrain tbs defendant from threatening legal proceedings iiirespect of the “ Glo w-worm ) lamps, and he now moved for an interlocutory inj unction under sec_t1_011 3~ of t e Act. On behalf of the defendant it was contended, in oppoflliwll i-° the motion, that, assuming the letter to Stephenson amounted to B threat of legal proceedin within section .32, still the plaintifi could not obtain the injunction unfiss he shewed that his lamps were not an 111fringement of the defendant's patent. That was the sole question to be considered, for both before and since the Act of 1883 the validity of the defendant’s patent could not be called in question on motion for ‘mi injunction ; the only change made by the Act was that now the queflmll If the bomrfide: of the rson making the threats was immaterial, but the rule which existed fifore the Act was assed remained-viz.i lb” the plaintiff was bound to shew that he ham; not infringed the defendant’s patent. In support of this contention the cases of Wren v. Wield (4 Q. B. 730), Halsey v. Brotherhood (30 W. R 386, 19 Oh. D. 336), and .Kurl: v. spa.-we (35 W. R. 26, 33 Ch. D. 579) were referred _f-0Further, that it was apparent here that the plaintiffs lamrps were In 111' fringement of the defendant’s patent which he was anti ed to pr0W_'~'*It was open to the plaintiff either to establish that his lamps were no infringement, or to take proceeding to get the defeudant’s patent revoked

KAY. J-, in the course of his judgment, said that he declined to accede to the argument that the court was absolutely powerless to grflllt 5“ interlocutory injunction in a case like this, unless it were proved fll lb” time the injunction was applied for that there had been actuslli '§° m' fringe-ruent. In his view in an action like this, where at the $1‘?-1;‘; 1"J\"10t10i1_ and damages might be granted, the question to be conside at "PW Bnunterlocutory motion was, not whether there had or lmd he been an infringement, but whether, looking at the circumstaawb court thought that on the balance of convenience or inconvenience 711° acts complained of ought to be restrained until the trial. If the flu“ were as contended for, a case could easily be im iued where a trad? °' bufliness mi8lit be completely destroyed before atie trial of the 55'9"’ and any injunction then granted would be rendered useless and flmleé The question of whether or not there had been an infringement W130,1 one to be decided on interlocutory motion unless upon evidence WW ‘"5 Pflwtically overwhelming, and there ’was no such evidence 1“ Pfeieht <>M6- The point on which he decided the case was that on W11“?

[graphic]

unacy on

ithe court was always bound to decide applications of this sorfrwlizw

« PreviousContinue »