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creditor on the ground that his conveyance must be deemed to cation is registered in Yorkshire or not. Possibly it may be neceshave priority in point of time over the writ, and, therefore, over sary to register it for the purpose of obtaining priority over conthe delivery in execution which necessarily follows it.
veyances executed by the bankrupt after adjudication, but this is Fi. fa.- Leaseholds are not bound as against a purchaser for value not at all certain. If an adjudication is made, no question as to until the time when the writ is delivered to the sheriff (30 SOLICI- priority of effect arises between a conveyance of the protected TORS' JOURNAL, 725), or, possibly, if the word “goods " bears the class and the receiving order. The latter only marks a date after same meaning in the Mercantile Law Amendment Act (19 & 20 which no conveyance is to be protected; and it seems probable, Vict. c. 97), s. 1, as it bears in the Statute of Frauds, until seizure, therefore, that a protected conveyance will not lose its priority by if he had no notice that a writ under which the land could be seized want of registration in Yorkshire, and that, on the other hand, a was in the hands of the sheriff. Seizure is not a matter that can conveyance executed after the date of the receiving order may be be registered. In cases, therefore, where a purchaser from the protected if registered in Yorkshire before the registration of the judgment debtor, without notice of a writ, enters into a contract receiving order if it be of such a nature that it would be probefore seizure, his right will be preferred to that of a purchaser tected if the land had not been in Yorkshire and if the conveyfrom the sheriff; and if his conveyance, not being founded on a ance had been executed before the date of the receiving order. prior contract, is completed before the seizure, he will not lose These points are, however, so doubtful that the wise course is to priority merely because the writ is executed before the con- register conveyances, receiving orders, and adjudications in bankveyance.
ruptcy without delay. On the other hand, if a conveyance not founded on a prior Tacking.–By the Act of 1884 (s. 15) registration of any contract, and made after seizure, is registered before the writ, it instrument was constituted actual notice to all persons. This may be held that the conveyance must be taken to have been section was repealed by the amending Act of 1885 (48 & 49 Vict. executed before the writ was registered, and, therefore, that the c. 26) as from the 16th of July, 1885. purchaser from the judgment debtor would have priority over a The Act of 1884 provides (section 16) that no priority or propurchaser from the sheriff, on the ground that the conveyance to tection shall be given or allowed to any éstate or interest in land the former must be deemed to have priority in point of time to the in the three ridings by reason or on the ground of such estate or writ, and, therefore, to the seizure.
interest being protected by or tacked to any legal or other estate Appointments of receivers. Orders appointing a receiver, in such land, except as against any estate or interest existing whether on final process or not, take effect from the moment when before the commencement of the Act, and that though the person they are made, and, therefore, it appears that, as between a con- claiming protection is a purchaser for value without notice. reyance to a purchaser (where there is no prior contract) and an The intention of the repeal of the 15th section of the Act of order, the priorities will be settled according to dates of registra- 1884 was to allow a mortgagee to make further advances, or a tion. But it must be remembered that, if the order is made in an banker to allow fresh drafts upon a mortgage to secure an account action which is properly registered as a lis pendens, the purchaser current, without searching the register before each advance or draft. may be postponed owing to the doctrine of lis pendens.
But it is extremely doubtful whether this repeal will have the Bankruptcies.-Seeing that the Yorkshire Registries Act of 1884 desired effect, owing to the omission to repeal section 16. was passed one year only after the Bankruptcy Act of 1883, which repealed the Act of 1869, it is probable that the draftsman of the Yorkshire Registries Act, 1884, had the Bankruptcy Act of 1869, not the Act of 1883, before him. Under the Act of 1869, on
REVIEWS. adjudication, all the property belonging to the bankrupt at the date of the act of bankruptcy on which the adjudication was
EQUITY. founded, vested in the trustee in bankruptcy; but conveyances for a PRACTICAL COMPENDIUM OF EQUITY. By W. W. WATSON, Esq.," value made by the bankrupt before adjudication to a person not
Barrister-at Law. SECOND EDITION. By the AUTHOR and B. P. having notice of the act of bankruptcy were protected. We see,
NEUMAN, Esq., Barrister-at-Law. Vols. H. 3weet & Sons. therefore, the reason for specially mentioning “order of adjudica Mr. Watson's work consists of a digest of the law of equity tion” in the Yorkshire Registries Act. There can be but little arranged under a series of about forty different heads. These beads doubt that a conveyance of lands in Yorkshire made after ad- are arranged in alphabetical order ; but as many of them contain judication by a person who is bankrupt under the Act of 1869, be requisite to have some little familiarity with it before one could
sub-heads, the book is not really an alphabetical digest, and it would but registered before the adjudication is registered, would be pro- know precisely in which part of the two bulky volumes of which it tected.
consists to look for the information required on any particular point, The questions that arise under the Bankruptcy Act, 1883, are Thus“ Parent and Child” comes as a sub-heading to Guardian and somewhat difficult. On a receiving order being made the official Ward;” while the law of partition is included under the heading of receiver becomes receiver of the property of the debtor, but no joint-tenancy, which also includes tenancy in common and copar, cessio bonorum takes place, as it is uncertain whether the debtor cenary; and there is a heading entitled "Vesting and Divesting of will ever become bankrupt. If an adjudication follows, all the Estates and Interests,” which seems, so far as we have looked into it, property belonging to the bankrupt at the date of the act of arbitrary method adopted, we are by no means prepared to con
In spite, however, of the rather bankruptcy on which the ad tion was founded vests in the demn it; for it appears to have been suggested by a certain undertrustee in bankruptcy, but conveyances for value made by the lying logical principle, and must be looked upon rather as a.com bankrupt before the date of the receiving order to a person not promise than in any other light. We have little doubt that the having notice of the act of bankruptcy on which the adjudication is general index at the end of the book would soon enable the reader founded are protected.
to get over any preliminary difficulties of this kind. Our principal The receiving order is an order of court within the meaning of fear with regard to the book is that it rather falls between two the Yorkshire Registries Act, 1884, and is, therefore, capable of stools, being too minute and copious for the student, and not full or registration. It appears, therefore, that, so far as regards its detailed enough for the lawyer. The author has, however, shewn immediate effect in appointing a receiver of the property of a bank- has done this best to give the very utmost amount of information rupt, registration is material, and that the receiving order will, if in the limited space which he has allowed himself. registered in Yorkshire before a conveyance by the bankrupt, have writer attempts to condense the law of “wills” into less than 'wo priority over it, and that any such conveyance, even if made after hundred pages, and that of " powers" into less than one hundred, he the receiving order, but registered before it, will have priority sets himself a task which it is not easy to accomplish successfully: over the order.
There are, however, many to whom a sort of dictionary of the In cases where an adjudication is made the questions that arise effect of the more important decisions in equity will doubtless be are more difficult. The effect of adjudication does not depend on
useful, and to such we can confidently recommend the work now its date, but on two things—namely, (1) the date of the act of enlarged from its predecessor, and appears, so far as we have been registration), and (2) the date of the receiving order. It appears condition of the law. One or two slips and oversights, nevertheless, therefore that, at all events as regards all transactions that take place before the adjudication, it is immaterial whether the adjudi- Family Arrangements," a quotation is given from the judgment of
329 James, L.J., in Moxon v. Payne (8 Ch. 881), as if it referred to a "Family Arrangement,” whereas it is clear, on referring to the
CORRESPONDENCE. case, that his lordship’s expressions are, properly speaking, applicable only to compromises ; and on page 65, under the sub-head of
SOLICITORS AND THE IMPERIAL INSTITUTE. Compromise of Proceedings,” no reference is given to the very im
[To the Editor of the Solicitors' Journal.] portant case of Harvey v. Croydon Sanitary Authority (26 Ch. D. 229). It also appears to us that not sufficient notice is taken of the Sir,- I have nothing to say against the scheme of the Imperial effect of the Judicature Acts in doing away with the necessity of Institute, about which nobody knows much. I am quite willing shewing an equitable ground for relief in suits brought in equity to admit that it is in every respect admirable, and may do for courts. For instance, on page 103 it is stated: “If the plaintiff fail this country and the empire all that the most sanguine of its proto establish any contract of which specific performance can be de- moters expect, and I need hardly say that I do not wish to creed, damages cannot be given," and on page 1,252, in discussing appear to be wanting in respect for His Royal Highness the Prince the remedies for “Waste," it is stated: “An action for an account of Wales; but I do object_to having the screw applied by the will not lie, except as incident to an injunction.” Neither of these Council of the Incorporated Law Society to extract money from the statements are now correct, and, as they stand, they might prove pockets of myself and others of the profession who may not possibly misleading to a student. We would also suggest in a future edition view the scheme even in so favourable a light as I do, or who may that some space might be gained for more important matter by find it very inconvenient to comply with such a demand and equally omitting much of the article headed " Assets,” which is now chiefly unpleasant to refuse to do so. Everyone I suppose throughout the of historical interest.
country is aware that such a project is on foot, and everyone can
contribute as much as he pleases to support it; but if a species of MARRIAGE LAW.
blackmail is to be levied in order to provide funds, it seems to me THE MARRIAGE LAW OF ENGLAND. SECOND EDITION, REVISED AND the result will be quite the contrary.
that instead of a friendly feeling towards the scheme being created, ENLARGED. By JAMES T. HAMMICK, Esq., Barrister-at-Law, late Secretary of the Registrar-General's Department, Somerset House. the authority of the Incorporated Law Society being used for the
This, however, is somewhat beside my present point. I object to Shaw & Sons.
purpose of obtaining money for this or any other scheme, however This book gives a clear and readable account of the law relating excellent, which is entirely unconnected with the business of the to the ceremony of marriage, and the present edition, besides being society and over which the society has no control. If a precedent an improvement on the first in type and general appearance, contains be once established, there are numerous institutions, all equally worthy
good deal of additional matter. The arrangement of the subject of support, for which contributions may be demanded with quite as is little altered, and, indeed, it would not be easy to present it in a much reason. And what would be the result of non-compliance more logical and convenient manner. The hardships which existed with the demand of the council to those members of the profession under the old law, prior to 1836, are well pointed out, though it is who, in these hard times, might be unable to spare the money ? somewhat difficult to realize that till that date only Jews and Why, they would feel themselves to be marked men; and, however Quakers were allowed marriage ceremonies of their own, and that unjustified they might be in taking that view, it is, I submit, a posiall beside, Roman Catholics and Dissenters alike, could be married tion in which no one should be placed.
A SOLICITOR. only in the Established Church. Mr. Hammick, however, is now contented to let well alone. He strongly disapproves of the attempt made last year by the present Attorney-General to turn Dissenting ministers into registrars, and inserts a forcible protest on the subject contained in a letter by the late Registrar-General, Major Graham, to Mr. H. Richards, M.P. But if such grievances are only senti
CASES OF THE WEEK. mental, the old law had others of a very real kind. Thus the ROBINSON v. DUKE OF BUCCLEUCH AND QUEENSBERRYmarriage of minors by licence, without the consent of parents or
C. A. No. 1, 10th, 12th, and 14th March. guardians, was absolutely void. Hence, where the consent of the ADMISSIBILITY OF Evidence-CertifICATES OF BAPTISM AND BURIAL. mother was obtained, who was supposed to be a widow, and it was afterwards discovered that the father was living, it was held that ejectment at the Leicester Assizes.
This was an appeal from the decision of Stephen, J., in an action for
In 1874 the defendant bought some there had been no marriage. This has now been altered, and, though property in Warwickshire from Thomas Robinson. The plaintiff claimed the consent is still required, yet the want of it does not destroy the as heir-at-law, and alleged that his grandfather was the elder brother of validity of the marriage. It is clearly one thing to attempt to the grandfather of the vendor. The only question now raised was as to prevent foolish or ill-considered marriages by directing certain pre- the legitimacy of the plaintiff's father, who was known as cautions to be taken, and quite another to declare that the marriage Pensioner” to distinguish him from the plaintiff's grandfather who was shall be void for want of them after its obligations have been entered known as “ John the American.” The plaintiff's documentary evidence
But in their present state our marriage laws are by no means free Hannah Holyland, dated November 18, 1782, of a certificate of the from difficulties, and these are clearly explained by Mr. Mammick, baptism of "John, son of John and Susanna (sic) Robinson, dated March Thus be shews that the name in which banns are published need not October's, 1857, in which his age was stated to be seventy-four, and of a be the original name, but should be the known and reputed name. military certificate of the service of John the Pensioner in which his age He gives an opinion of the late Sir R. Phillimore on the curious was also stated. The plaintiff also relied on the will of the maternal question of residence, from which it appears that the mere hiring grand father of John the Pensioner, in which he was mentioned as “my free from doubt. And with the whole question of the different evidence of reputation in the family that the Pensioner was regarded as special licences in the Church of England, and before the sider that the documents raised a presumption of legitimacy, this was not clear to all who are concerned with the administration of the meistrar-he deals in such a manner as should make it perfectly fully gone into. On the other hand it was proved that John the Ameri
can left England for New York immediately after his marriage with marriage law. The Appendix contains the statutes on the subject, codicil to his will, dated July 3, 1822, he left a legacy to John Robinson
Hannah Holyland, and that he married again and died there, and by a presented, where necessary, in full, and a statement of the law in the won of Hannah Holyland," while he referred to all his other children heeful matter. The book is brought well up to date, and the author plain time, and the defendant now contended that there was no evidence has been able to insert amongst the addenda the recent case of Scott Phat Gothin the Pensioner was born after the marriage of his parents in
Sebright. The various subjects of the marriages of Quakers and November, 1782. Jews, of the marriage laws of the other parts of the United Kingdom, The Court (Lord ESHER, M.R., BOWEN and Fry, L.JJ.) allowed the and of marriages abroad, are fully treated of in the text.
appeal, and directed a new trial. They said that they doubted whether
the certificate of baptism w is rightly admitted in evidence, but that if it et le place on Saturday last, in his deveneathirst year, the frequenters of Battalchougtha stating his age was no evidence of it. The certificate of
Oohe Daily News says that :-“ By the death of Mr. W. G. Bower, which weist on bueiai' wat only vivas evidence of the death of John the Pensioarer, figure, wo Courts and the legal profession genetangawith mise en familial military service was inadmissible altogether. The presumption of Law figure. He was formerly cierk to the late Lord Chelmsford when he was that a child born after wedlock was legitimate, but here there was practised at the bar, and on the elevation of that learned gentleman to
no evidence at all of the date of the child's birth. The mere fact that & the woolsack he was shortly afterwards appointed chamber clerk to Mr. woman had a child and that at some time or other she was married, Justice Mellor in 1861, which post he continued to hold for many years:
raised no presumption of the legitimacy of the child. The evidence of oletely Lord Justice Thegiger (son of Bord Chenmblera, aliter war dhe hard reputati be most delicte ble henne here should be at ang atehere the trial.cat when am very handsome wreath was sent by the pladget Eteiks, Cleverte et mot Graram and Toller. Solicitors, Nicholos Manisty; Gedge, Kirby, I Co., for we hearts to Mr. Justice career the funeral took placeral meaning Cemet danst would, besimet dhe imalobster, i doces should be op, van de Arthure Denman ;
the proceeds of the sale of the chattels the grantees might retain their FURBER v. COBB-C. A. No. 1, 8th March.
full charges and commission as auctioneers, as if they were selling on BILL OF SALE-VALIDITY-COVENANTS NECESSARY FOR MAINTENANCE OF
behalf of the grantor. This was a provision for securing to the grantees Security”—Power To Seize-Bills or Sale Act, 1882, ss. 7, 9, 13– a larger advantag? than they would have had if the statutory form had FORM IN SCHEDULE.
been followed ; it was not a provision for the maintenance of the
security, but a provision for obtaining to the grantees, in addition to that The question in this case was as to the validity of a bill of sale given as security, their trade profit as auctioneers by the sale. And, even if the security for money. By the deed the grantor assigned to the grantees, proviso at the end of the deed could limit the effect of the previous who were auctioneers, the chattels specifically described in a schedule covenants, which had been declared to be necessary for the maintenance thereto, and which were stated to be then in a certain messuage. The grantor of the security, the bill of sale would be calculated to mislead, and would covenanted with the grantees that he would not remove the chattels, or be void on that ground. Fry, L.J., concurred. He was of opinion that any of them, from the premises where they then were, without the consent the covenant to replace and repair any of the chattels destroyed or in writing of the grantees; that he would not permit the chattels, or any injured was “necessary for the maintenance of the security." The part thereof, to be destroyed or injured, or to deteriorate in a greater security was maintained only when the subject-matter of the charge and degree than they would deteriorate by reasonable use and wear thereof, the grantees' title to that subject matter were both preserved in as good and would, whenever any of them were destroyed, injured, or deteriorated, plight and condition as at the date of the bill of sale. The Court said forthwith replace, repair, and make good the same. And it was agreed that, if necessary, they would give leave to appeal to the House of that, in case default should be made by the grantor in payment of the Lords.-Counsel, Pollard, R. Vaughan Williams, and E. F. Hodge; Lumley principal or interest, or any part thereof, or in the performance of any of Smith, Q C., and Herbert Reed. SOLICITORS, R. Furber; Burgess & Cosens. the covenants thereinbefore contained on the part of the grantor, “all of which covenants are hereby declared to be necessary for the maintenance Re MARSHFIELD, MARSHFIELD v. HUTCHINGS-Kay, J., 28th of the security hereby created," or if he should become a bankrupt, or
February and 11th March. suffer the chattels, or any of them, to be distrained for rent, rates, or taxes, or if the chattels mentioned in the schedule, or any of them,
MORTGAGOR AND MORTGAGEE-ARREARS OF INTEREST-SALE BY MORTGAGEE should be fraudulently removed from the premises on which the same
UNDER POWER OF SALE_"DISTRESS, ACTION, OR SUIT”-STATUTES OF were or should be, or if the grantor should not, without reasonable
LIMITATION—3 & 4 Will. 4, c. 27, s. 42—37 & 38 Vict. c. 57, s. 10. excuse, upon demand in writing by the grantees, produce his last receipts The estate of a second mortgagee was being administered in the action, for rent, rates, and taxes, or if execution should have been levied against and his executors claimed from the first mortgagee £250, part of the the chattels of the grantor under any judgment, in any of such cases it proceeds of the sale of the estate, which had been sold by him under his should be lawful for the grantees, without notice, immediately, or power of sale, and which he insisted on retaining in respect of arrears of whenever they might think fit, to seize the chattels, and, after the interest beyond the statutory limit of six years. The executors applied expiration of five clear days, to sell the same, and to receive the proceeds to the court for directions, and the first mortgagee agreed to appear aud of sale, and therewith, in the first place, to reimburse themselves the have the question determined on the summons. costs of such sale, “including therein the full charges and commission of KAY, J., said that this was not a distress, action, or suit by the first the grantees as auctioneers, as if they were selling on behalf of the mortgagee to recover his interest, but rather a suit by the mortgagor grantor,” and, in the next place, to pay other costs and expenses, and to against the mortgagee. The case came exactly within the decision of pay the principal and interest remaining due, and to account for the Kindersley, V.C., in Edmunds v. Waugh (14 W. R. 257, 1 Eq. 418), and surplus to the grantor ; provided always that the chattels thereby assigned he must hold that the first mortgagee had a right to retain more than six should not be liable to seizure or to be taken possession of by the grantees years' arrears of interest.-Counsel, Phipson Beale; E. Beaumont; R. F. for any cause other than those specified in section 7 of the Bills of Sale Norton ; Church. SOLICITORS, Winckworth, Trollope, & Winckworth ; Munns Act, 1882. Bowen, L.J., held that the covenant not to permit the $ Longden ; Prior, Church, & Adams, for H. Salter Dickenson, Poole, chattels to be destroyed or injured, or to deteriorate, &c., was not neces
Dorset. sary for the maintenance of the security, and that the bill of sale was void, because power was given to seize and sell the chattels on breach of
COOTE V, INGRAM–Chitty, J., 15th March. that covenant.
R. S. C., 1883, XXXVI., 2–8—MODE of Trial-Right TO A Jury. The COURT OF APPEAL (Lord ESHER, M.R., Sir JAMES HANNEN, and Fry, In this case a motion was made by the plaintiffs to discharge an order L.J.) dismissed the appeal, holding the bill of sale to be void, but on a dif- obtained in chambers by the defendant for a trial of the action before a ferent ground. Lord Esher, M.R., held that the bill of sale either altered the jury. It appeared that the action was brought for an injunction and legal effect of the statutory form, or that it was a puzzle and misleading. In damages for infringement of literary copyright. On motion for an either view the bill of sale was void. But he thought that the ground interim injunction, an undertaking had been given by the defendant. The taken by Bowen, L.J., could not be maintained. Sir James HANNEN defence alleged acquiescence, and also that publication of the words of songs agreed with Bowen, L.J., that the parties could not by agreement make a did not constitute an infringement of registered copyright in words and covenant “necessary for the maintenance of the security” which was not music of songs. The defendant claimed an absolute right, under ord. necessary. The court must, in each case, decide whether a particular 36, r. 6, to a jury, citing Coles v. Civil Service Association (32 W.R. covenant was necessary. The covenant must be necessary for the main- 407) and Fennessy v.' Rabbits (ante, p. 316). The plaintiffs contended that tenance of the security created by the bill of sale, not for the mainten- the effect of ord. 36, rr. 4 and 7a, was to give the court or judge a disance of a "sufficient security” less than that agreed to be given. In the cretion, citing The Temple Bar (34 W. R. 68, 11 P. D. 6). present case the security given was a number of articles of furniture liable CHITTY, J., said that the question turned principally on the meaning and to destruction or injury, and, if such destruction or injury should occur, effect of 'ord. 36, rr. 4, 6, and 7a. The Court of Appeal appeared to the security would be pro tanto diminished. A covenant that the articles to have held in The Temple Bar that the effect was that the right to a jury destroyed or injured should be replaced or repaired was, therefore, was preserved in those cases where such right existed previously to the essentially necessary for maintaining the security agreed on. It was con passing of the Judicature Act, 1873, and a discretion was conferred on tended that a power to seize upon the destruction or deterioration of a the court or judge in cases where the right to a jury did not previously single article was unnecessary. This argument was based on the assump: exist. The Appeal Court decided that the words " in any other cause tion that the Act intended that a right of seizure might only be given for or matter” in rule 6, referred to causes or matters as specified in rule 4, breach of a covenant necessary for maintaining a sufficient security, which, previously to the Act of 1873, could, without any consent of the bility of hardship arising from the legal enforcement of the right to seize which, previously to the Act of 1873, could have been tried in the Court which a judge might restrain the grantee from selling, if the grantor therefore held that the defendant had no such right as that which he within five days after the seizure replaced the article or tendered its value claimed. He also held, in exercise of the discretion conferred by the rules security that the right to seize should arise if the grantee did not e forth. before a jury, and he came to that conclusion independently of any such with” meant “ within a reasonable time," it added nothing to the force case for trial before'a jury lay with the party making the application for with replace or repair the articles destroyed or deteriorated. If " forth- question as whether, in cases like the present, the burden of making out a ing the security agreed on that a portion of it, if lost, should be made the burden of proof Tay with the party applying for a triad degree of expedition, his lordship thought it was necessary for maintain: 1875) it was held in Hunt v. Chambers (30 W. R. 527, 20 'Ch. D. 365) that good with as little delay as possible. that the bill of sale was not vitiated by this covenant.
He was, therefore, of opinion without a jury; but that case was, as observed in the Temple Bar, decided opinion that the covenant not, without the consent of the grantees, to ties. But, as he understood the Lords Justices, rules 4 and 7a, when read. for maintaining the security, kne fixing a place where the gods were to either with or without a jury, in cases where there was no right to a puerta remove the chattels from the premises where they then were warmtessary together, tdi confer upon the court or judge discretion to direct a trial, remain being part of the security agreed Bhace The grantee had a right to before the Act of 1973, and that the new rules cast the burden of prope stipulate for this particular safeguard. The insurance against fire would on the party asking for a jury-or, at all events, that the discretion of the reasonable construction of the Covenant to hold that it wwald be broken in Chambers, with costs to be costs in the action. Counser, Romer, 0.07. by removing the goods to save them from destruction Yogu firele And, in and Eyre; Bramwell Davis. Solicitons, Wilkinson 9 Howlett ; G. J. 1. an innocent removal would be a breach of the covenant, and the grantees Barrett. should seize for such a breach, the grantor could obtain relief under the proviso at the end of section 7. His lordship was, however, of opinion, on the
WILLIAMSON v. FARNELL-North, J., 14th March. authority of Ex parte Stanford (30 SOLICITORS' JOURNAL, 418, 17 Q. B. D. SPECIAL POWER OF APPOINTMENT-VALIDITY OF 269), that the bill of sale was void, because of the agreement that out of
EXERCISE-ATTEMPTED DELEGATION OF POWER TO APPOINT TO PERSONS NOT
ORIGINAL POWER-LIMITATION IN DEFAULT OF EXERCISE OF DELEGATED inasmuch as the vendors had no title, they had no right to retain the POWER.
deposit, that the deposit had been paid upon the assumption that the In this case a question arose as to the validity of an exercise of a special W. R. 685, 8 Ex. 175) and Cooper v. Phibbs (15 W. R. 1049, 2 H. L. 149).
vendors could make a good title. He relied upon Want v. Stallibrass (21 power of appoiutment. A testator had, under a settlement, power to appoint for the defendants it was urged that the purchaser, not having taken the made an appointment to his son R. for his life, and after his death in objection and having failed to complete by his own default, the vendors trust for the child or children of R., as he should by deed or will ap
were entitled to forfeit the deposit, as in Iowe v. Smith (32 W. R. 802, 27
Ch. D. 89). point, and in default of such appointment to R. absolutely. It was admitted that the delegation to R. of a power to appoint, and especially
KEKEWICH, J., held that, inasmuch as the plaintiff's failure to complete to appoint to persons not objects of the original power, was void, and the
arose entirely from his own inability to pay, and not from any objection question was whether the limitation to R. in default of any exercise of to the title, he could not recover his deposit, and the action must be disthe delegated power was also void. R. had not attempted to exercise the missed, with costs.--Counsel, Warmington, Q.C., and Rigg ; Barber, Q.C., delegated power. The assignee in bankruptcy of R. claimed under and Vernon R, Smith. Solicitors, Granville Smith, for Hutchings, Teignthe ultimate limitation to R. In opposition to his claim reliance was mouth ; Lovell, Son, g Pitfield. placed on the cases in which it has been held that, where the donee of a power makes an appointment to persons who are not objects of the power, DAVIES BROS. & Co. v. DAVIES--Kekewich, J., 15th March. and, subject to that appointment, makes an appointment to a person who Covenant IN RESTRAINT OF TRADB—“So Far As the Law Allows". is an object of the power, the ultimate appointment is void as well as the
REASONABLENESS. appointment to the persons not objects, on the ground that the donee, in making the appointment, intended that the ultimate appointment should In this case the question for the court was the meaning of a covenant take effect only after the appointment to persons not objects was in restraint of trade, couched in the following terms:- The said James exhausted : Brüdenell v. Elwes (i East, 442, 7 Ves. 382). On behalf of Davies to retire wholly and absolutely from the partnership, and, so far as the assignee it was argued, that this rule does not apply when a mere the law allows, from the trade or business thereof in all its branches, and power is limited to a stranger to appoint the fund, and in default of not to trade, act, or deal in any way so as to either directly or indirectly appointment the fund is given to objects of the original power, as in affect the said E. Davies and me, E. A. Davies.” The facts were shortly Ingram v. Ingram (2 Atk. 88). In answer to this reliance was placed on as follows :- The plaintiff, E. A. Davies, and the defendant were brothers, a passage in Sugden on Powers (8th ed., p. 515) as shewing that thie and formerly carried on business, in partnership with their father, in exception does not apply when the delegated power is to appoint among Wolverhampton and London, as galvanizers and galvanized iron manustrangers, because the intention of the donee is the ground on which facturers. Disputes arose and a dissolution resulted, the plaintifft, E. A. limitations over to good objects, after limitations to strangers, are held to Davies, and his father purchasing the defendant's share in the business be void, and that principle applies as forcibly to a power to appoint among by an indenture of the 11th of October, 1884, in which was contained the strangers as to a direct gift to them.
covenant in question above set out. A company subsequently bought the NORTH, J., held that the ultimate gift to R. was valid, notwithstanding whole business. In 1885 the defendant commenced business in London as the prior delegation of a power to appoint among strangers. The inten. a galvanized iron merchant, and, as the plaintiff alleged, as galvanized iron tion of the testator was that R. should take in default of an exercise of manufacturer, in partnership with one W. S. Codner, who had travelled the delegated power, and that power was void and never could be validly for the old firm, and they issued circulars and ctherwise traded, as plain. exercised, and it had not in fact been exercised. In his lordship's tiffs alleged, in breach of the covenant. This was an action to restrain opinion Carr v. Atkinson (14 Eq. 397) and Webb v. Sadler (8 Oh. the breach. The defence raised was that (1) the covenant was too vague 419) were authorities in favour his conclusion. COUNSEL, to be binding ; (2) was in general restraint of trade, and, on the facts, Giffard, Q.O., and Follett; Cookson, Q.O., and Kingdon ; Humber. that there had been no breach, and that the plaintiff had acquiesced in the SOLICITORS, Gregory, Rowcliffes, & Co. ; 'Putvoye, Field, Baker'; Sewell g breaches (if any). Edwards,
KEKEWICH, J., said all the authorities concurred that the doctrine as
to these covenants was founded on public policy, but the remark of BAGLEY v. SEARLE—Stirling, J., 12th March.
Burrough, J., in Richardson y. Mellish (2 Bing. 252) that "public policy Specific PERFORMANCE-MOTION FOR JUDGMENT IN Default of PLEADING – know where it will carry you," was quite true. One thing was clear, and
was a very unruly horse, and when once you get astride of it you never EVIDENCE.
that was, that public policy varied with the habits, capacities, and opporUpon this matter, which was a motion for judgment in default of tunities of the public hence the difficulty of deciding what was a reasonpleading in an action for specific performance, coming on for hearing,
able restraint of trade. It had always been held that such a covenant, to STIRLING, J., stated that, since De Jongh v. Newman (W. N., 1887, p.
be reasonable, must be limited as regards space, but not necessarily as to 59) had been before him, he had looked into the matter, and had found persons.
The limit of time could seldom, if ever, be the basis of judgment. that the practice in the different courts with regard to requiring the
Rousillon v. Rousillon (28 W. R. 623, 14 Ch. D. 351) was a useful case, and plaintiff to produce an affidavit in proof of his statement of claim was not clearly adopted the rule that a defendant alleging the invalidity of a conuniform, and that, under these circumstances, he should not in future tract on the ground that it is in restraint of trade has cast on him the burden require such an affidavit.-Counsel, Bissill. SOLICITORS, Gardiner & Son.
of shewing it to be clear that the protection extends beyond what the plain
tiffs' interests require. The authorities, in fact, came to this, that in Re RUDDIMAN'S TRUSTS-Stirling, J., 12th March.
order to be valid, a covenant in restraint of trade must be founded upon
adequate, that was to say real, consideration; it must be partial in respect PAYMENT OUT Or Court--Petition –Service on Trustees Dispensed Witv. of space, and it must be reasonable. There was no question about the
This was a petition for payment out of court and distribution of certain consideration in this case. Then was the covenant too vague? The funds paid into court under the Trustee Relief Act. paid into court upwards of thirty years ago, and the last survivor of the thought it meant that James Davies should retire from the trade to the trustees who had paid it in had died in the year 1855. The legal personal full extent that the doctrines of English law as interpreted by the High representatives of that trustee could not be found, and the court was asked Court or the Court of Appeal, or, in the last resort, the House of Lords, to dispense with service upon them. The case of Re Bolton's Will (18 would allow a man to contract himself out of the privilege of engaging in W. R. 56) was cited in support of the application.
a particular trade or business. He was not called on to decide what STIRLING, J., dispensed with service upon the representatives of the
were reasonable limits as regards space of a covenant such as that in questrustees.-COUNSEL, Stokes; Ingle Joyce; Mac$winney. Arnold & Co.; Simpson, Hammond, & Co.
tion here; all he had to do was to say whether those reasonable limits included the place in which, according to the evidence, the defendant had
been and was carrying on a business similar to that of the plaintiffs. An SOPER v. ARNOLD-Kekewich, J., 15th March.
injunction would be granted to restrain the defendant from carrying on Vendor and PURCHASER—Forfeiture Of Deposit-Porchaser': FAILURE or dealing to a directly or indirectly to affect the business in which he had
TO COMPLETE-WANT OF TITLE. In this case a question arose whether vendors were entitled to retain a and the way it had been got up and conducted, costs subsequent to reply the purchaser having failed to complete, and the vendors having failed to Barber, a C., Cock, Q.0., and Russell Roberts. SOLICITORS, Brooks f Jenkins, anelen out a title. The plaintifeoagreed to purchase some basic froined the form Shelten, Walker, 3: Robinson, Wolverhampton ; 19. Chapman. ditions that, if any requisition were made with which the vendors could
FAWCETT v URWIN-Q. B. Div., 11th March. not comply, they should be at liberty to rescind, and that, if the purchaser failed to complete, the deposit should be forfeited and the vendors should
CONVEYANCE AFTER-ACQUIRED PROPERTY-FURNITURE IN FUTURE be repaid all expenses to which they had been put. The purchaser took
DWELLING-HOUSE-LIMITATION TO SETTLOR TILL BANKRUPTCY WITI GIFT no substantial objections to the title, but he failed to complete the purchase, not having sufficient means to enable him to do so. The vendors accordingly put the property up for sale again, and a new purchaser was
This was an interpleader issue which had been referred by a judge at
chambers to the court. It arose out of an action in which the plaintiff vendors purported to sell did not exist. out under the Vendor and Purchaser Act between the vendors and the
A summons was thereupon taken party. On the sheriff proceeding to levy execution on the goods of Nesbit, dech a purchaser to decide the point, and between the mendorean Order Nesbit prior to and in contemplation of his marriage. By this settlement which he had paid upon the origemine tohte nemen are to become tenha e deposit wegwire band have indeat hode vor finrainy mother house which he and his
CASES AFFECTING SOLICITORS.
CRIMINAL LAW CASES.
REG. v. GIBSON-5th March.
PROCURE INVESTMENT or Moner—"CARRIAGE OF ORDER”—CHANCERY Funds Rules, PRACTICE-HEARSAY EVIDENCE OF IDENTITY-OTHER EVIDENCE OF IDENTITY 1874, R. 37.
-No OBJECTION BY PRISONER’S COUNSEL TILL AFTER SUMMING UPIn this case an important question was raised as to the jurisdiction of
CONVICTION Quashed. the court to enforce the liability of a solicitor for a loss occasioned by the This case raised the important question whether evidence in a criminal non-investment of a sum of money in pursuance of an order, and as to case improperly received, but not objected to by the prisoner's counsel at the construction of rule 37 of the Chancery Funds Rules of 1874. That the time it was given, vitiated the verdict. The case was stated by the rule provides that " when an order
rects the carrying over of deputy-chairman of the General Quarter Sessions of the West Derby money or securities in court, or the investment
of money in Hundred of the county of Lancaster. The prisoner was indicted for court, or of dividends to accrue on securities in court, the Chancery Pay- unlawfully and maliciously wounding Thomas Simpson. The prisoner master may defer giving effect to such direction until a request in writing and prosecutor had had an altercation outside a public-house, and the to give effect thereto has been left at the Chancery Pay Office; but it shall offence was committed shortly afterwards, as the prosecutor and others on be the duty for the person having the carriage of such order
to their way home were passing the prisoner's house, when the prosecutor leave it and such request at the Chancery Pay Office without unnecessary was struck with a stone coming from the direction of the prisoner's house. delay.” In March, 1883, the plaintiff obtained ex parte an interim order The prisoner was seen to enter his house after the prosecutor was struck. for an injunction on the terms of his lodging £500 at the bank“ to the The prosecutor stated, but not in answer to any specific question put to credit of a chancery'ex parte account,” and this sum was lodged by him him, "Immediately after I was struck by the stone a lady going past, accordingly. On the 19th of April, 1883, he moved for an injunction, pointing to the prisoner's door, said, “The person who threw the stone and the court made no order on the motion, "except that the question of went in there."" No objection was taken to this evidence at the time. the right to any damages to be paid by the plaintiff to the defendants and It was further in evidence that, with the aid of a police constable, the the question of the costs of this motion be specially reserved until judg- prisoner's house was forcibly entered after admission had been refused, ment in this action. And it is ordered that the plaintiff, on or before and the only persons found inside were the prisoner and his father, who the 5th of May, 1883, do all necessary acts, pursuant to rule 31 of the was drunk and asleep on the sofa, and that when the prisoner was brought Chancery Funds Rules, 1874, for the purpose of having the sum of £500, outside the witness who saw him enter his house said, “That's the man lodged by him at the bank transferred by him into court to the credit of who threw the stone." There was no evidence as to who the lady who this action, and that such sum, when "so transferred, be invested in made the observation was, and she was not called as a witness, nor was Consols to the credit of the action to an account to be entitled Security there any direct evidence to chew that the prisoner did or could hear what for damages (if any! to be awarded to be paid to defendants.' And it is she said. In summing up, the judge directed the jury's attention, among ordered that the dividends, as they accrue due on the said amount, be other matters, to the evidence as to the words uttered by the lady. After drawn up, the defendants' solicitors sent it (i.e., the original of it) to the After the jury had retired the prisoners counsel contended (1) that the plaintiff's solicitor to enable him to procure the transfer of the £500 into evidence as to the said words uttered by the woman was not admissible court in accordance with the order. The transfer was duly made, but the inasmuch as the said words were not proved by the prosecution to have been money was not invested, and this omission was not discovered for several uttered in the presence or hearing of the prisoner. (2) That the evidence investment to be made. So far as could be ascertained, the plaintif's consideration of the jury. (3) That the fact that counsel did not ask solicitor, when he took the original order of the 19th of April, 1883, to immediately after the evidence as to the said words uttered by the woman the paymaster's office, left with it a request for the transfer, but did not had been given that the said evidence should be struck out, or raise any leave any request for the investment. In November, 1886, the plaintiff objection to the same before the jury retired, could not be allowed to took out a summons asking a declaration that the defendants' solicitors prejudice the prisoner in a criminal case. The judge held that the objeca were liable to make good the loss of interest which had resulted from the non-investment. North, J., refused the application. On the appeal it was
tions were made too late. The case further stated that there was ample contended by the plaintiff that the defendants solicitor had the to the statement objected to. The jury found the prisoner guilty. It
evidence of identification against the prisoner other than the evidence as rule 37, and were therefore liable for its non-investment, and the case after the evidence was once received; at all events the court ought not to of Batten v. Wedgwood Coal and Iron Co. (31 Ch. D. 346, 30 SOLICITORS" | eet aside the verdict where there was, as here, ample other evidence on