Page images
[merged small][merged small][ocr errors][ocr errors][merged small][ocr errors]

now customary. Our own belief is that, if the Legislature were applies, under section 19, to have the description of the boundaries compelled to speak plainly, it would impose the obligation of rectified. The board can hardly do this without notice to C. But registering a “caution

on every person claiming any special right what is the effect of such a notice ? No right has as yet been overriding a registered proprietor's right to convey. Such require obtained by B. as against C., owing to section 21 of the principal ment would be no hardship on the cautioner, and the compensating Act; nor does the new clause 19 give him any. Result: an action searches, if the present rule is continued, are very onerous. for ejectment at once commenced by C. against B., to which there

Fourth.Boundaries, land tax, tithe, easements, and tenancies is no possible defence. And 0, as far as we can see, it would
will have to be inquired after. It is pointed out that, always work out. As long as B. keeps quiet he may remain un-
as an ordinary registered title does not guarantee boundaries, disturbed, but he will certainly be turned out the moment he
and as the conditions of “confirmation of boundaries are attempts to protect himself under clause 19.
(as we ourselves have also pointed out, ante, p. 392) likely
to be found more onerous in practice than they seem to be on
paper, the purchaser must still make his own inquiries on
this point, and this is no doubt the case. Land tax, tithe, and

easements, together with rights to mines and minerals, and leases
and tenancies for under twenty-one years in occupation, are also

(with other things) exempted from the effect of registration by In our previous article we shewed that the exception in Cradock
section 18 of the Act of 1875.

v. Piper (1 Mac. & G. 668), by which a solicitor-trustee is allowed Fifth.— Where the subject of the purchase is a leasehold, the to charge profit-costs for work done in a suit on behalf of his copurchaser must satisfy himself that the rent has been paid and the trustees, arose from Lord Cottenham's failure to see the real ground covenants performed.

of decision in New v. Jones (note to Cradock v. Piper). But To these points mentioned by Mr. Hunter we would ourselves although this has probably been beneficial to trust estates in add one more, which is not unfrequently lost sight of. It is this. general, and has certainly better carried out the intention of It appears from the wording of the Act of 1875 that a purchaser testators than the ordinary rule, yet it has been strictly confined from a registered proprietor will have to satisfy himself of the to work done in a suit. It is true that no restriction of this kind identity of his vendor, or else he may get no title. The words of is mentioned in Cradock v. Piper, and the reason upon which the Act are these. Section 29 says :—“Every registered pro- Lord Cottenham based his judgment-viz., that a solicitor is only prietor of land may, in the prescribed manner, transfer such land debarred from charging profit-costs for work done on his own behalf or any part thereof. The transfer shall be completed by the regis- as trustee, and that it is no part of his duty to act for his cotrar entering the transferee as proprietor." From this it would trustees—applies, of course, to all professional work alike. But appear that to a valid registration two things are requisite—a the exception was so opposed to the doctrine of the law, and such transfer by the registered proprietor, and egistration of such difficulty has been found by the judges in reconciling it with New transfer by the registrar. If the person purporting to transfer is v. Jones, which, nevertheless, Lord Cottenham approved, that it not the registered proprietor, but only someone personating him, has been confined to the actual circumstances of the case in which the transfer is invalid. The question then arises, What about the it was first recognized, and as the costs there were costs in a suit, next transferee ? Is he to be forced to inquire into the identity of to such costs only has it since been held to apply. The first ail his predecessors in title? Apparently not. The first trans- decision to this effect was that of Vice-Chancellor Turner in feree, in a case of personation, though not having a good title as Lincoln v. Windsor (9 Hare, 158). In the later case of Broughagainst all the world, is undoubtedly “the registered proprietor” ton v. Broughton (5 De M. & G. 160) it was noticed by Lord as long as his name is on the books as such, and as such he can Cranworth that, where the question related to charges incurred in make a valid transfer to a third party. It would, however, be a a suit, there would be considerably less danger in relaxing the very desirable thing if clause 29 (and the corresponding clauses 22 general rule where the solicitor-trustee was a defendant than -mortgages—and 34—leases) could be so worded as to leave no where he was a plaintiff. But although this was the case in room for doubt one way or the other. On the general question it Cradock v. Piper, yet, fortunately, the further refinement thus appears to be no great hardship on a transferee to hold bim re- suggested does not appear to have been recognized. The quessponsible for the identity of his own immediate transferor, and to tion arose before Mr. Justice Chitty in the recent case of Burgess have the rule so cuts off a certain opening for conspiracy against v. Vinicombe (35 W. R. 326, 34 Ch. D. 77), and there it was the insurance fund.

expressly stated that costs of business out court followed the We may add that Mr. Hunter singles out section 21 of the Act general rule, while the exception in Cradock v. Piper was reof 1875 ( title adverse to the registered proprietor shall not be stricted to costs incurred in a suit; and, as it had been suggested acquired by any length of possession") as an object of oppro- at the bar that this exception was not really allowed in the taxing brium, and suggests its repeal. Nearly every critic of the Act has master's office, special inquiry was made on the subject, with the done so. Broadly, the section has been objected to as being result that the senior taxing master, after consulting two other opposed to every principle of law and every rule of convenience. taxing masters, reported that Cradock v. Piper was always acted An attempt is made by new clause 19 of the amended Bill to upon. But the matter is now definitely settled by Re Corsellis, palliate it to some extent (a provision which Mr. Hunter appears Lawton v. Elwes (35 W. R. 309, 34 Ch. D. 675), and this case we to have overlooked), but that clause rather tends to confirm the shall shortly examine. opinion that no palliation short of entire repeal can be of the slightest It so happened that the solicitor-trustee or his partner had done

The wording of clause 19 is very complicated and difficult work of various kinds, and each of these affords a useful example to understand ; its effect at best is only partial, and, on one of the application of the rule or its exception. They may be possible interpretation, nil. It runs thus (shortly) —" Where enumerated as follows :the description of the boundaries or parcels of registered land is (i.) An application for maintenance made under the summary not in accordance with possession, and the proprietor would not procedure of the court on behalf of the infant tenant for but for section 21 of the principal Act—be entitled to recover

life. To this the trustees were respondents. possession of the parts of which he is not in possession, the board (ii.) An action by the tenant for life against the solicitormay, subject to the prescribed conditions, rectify the description.” trustee, who was now the sole trustee, to execute the The restriction of the operation of the clause to “ the description

trusts and for a receiver. The receiver was appointed. of the boundaries or parcels

seems more verbal than actual; (iii.) The solicitor-trustee acted on behalf of the receiver in moreover, when we consider under what "conditions” the passing his accounts. board can alone be permitted to alter a registered description,

(iv.) The solicitor-trustee acted for the trust estate in preparing the following case will illustrate the probable results to which it

leases, and claimed his profit costs in respect of these, the will lead :—A. and B. are adjoining registered proprietors, with

costs being paid by the lessees. boundaries conclusive.

A. sets back his fence two feet in (v.) The partner of the solicitor-trustee was appointed steward consideration of B. relinquishing a claim for a water easement

of a manor, part of the trust estate, and the solicitorsomewhere else. No note is entered on the register. B. builds up

trustee claimed a share of the profits arising from fees paid to the new line. A. sells to C. After twenty years or so, B.

by the copyholders.



Both The Glentanner and The Mary Anne were rightly decided, intended to give the master a maritime lien on the ship which he could



Now the first of these depends clearly on the exception in it has been well settled that where a solicitor-trustee is not Cradock v. Piper. So much, however, did Mr. Justice Kay dis- allowed profit costs on work done by himself, neither can be charge approve of this that he decided to follow it only if the case before them where the work is done by his partner. him were of exactly the same nature (33 Ch. 'D. 166). Looking The fourth point raises some new considerations. The solicitorcarefully, then, for some ground of distinction, he found it in the trustee acted on behalf of the estate, or rather on his own behalf restriction we have noticed to costs in a suit. But an application as trustee, in preparing certain leases the cost of which was to fall made by summons to the court to fix the amount of maintenance on the lessees. Both Mr. Justice Kay and the Court of Appeal could hardly be said to be a proceeding in a suit; at any rate, it decided against him, though on somewhat different grounds. The was not a case of active litigation. Hence he felt free to treat it former pointed out at length that, though the lessees might pay as not within Cradock v. Piper, and to apply the general rule. the costs, yet it would be for the solicitor-trustee's interest that But when the came before the Court of Appeal it they should be as large as possible, and though the trust estate was seen that this was an improper evasion. As was said would not be directly injured, yet this might happen indirectly by Cotton, L.J., it would be frittering away the decision in owing to intending lessees being deterred by the heavy expense. Cradock v. Piper to say that it only applied to a hostile action, no But in the Court of Appeal it was said more briefly that the such limitation having been laid down by Lord Cottenham. And trustee was, at any rate, employed by himself, although, by custom, as to the more important question whether the court was bound the costs would fall on someone else. to follow that decision or no, he held that it had been so long Lastly, we have to consider the position of the trustee, or rather treated as a binding authority that it was impossible now to over his partner, who is steward. Mr. Justice Kay treated this case rule it. He referred to the doubts which had been thrown upon as being similar to the last, and decided against the trustee beit; but these had been doubts merely, and not contrary decisions, cause he might act prejudicially to the estate by claiming exorwhereas the case itself was a decision of the Lord Chancellor, bitant fees. But the Court of Appeal thought this impossible, as sitting as a court of appeal, and had been acted on in taxing costs the fees are fixed by custom, and though the steward is appointed from 1850 down to the present time. He recognized, too, the by the trustees, yet, as in no case are they liable to him, they anomaly of limiting the exception to costs in a suit, but suggested cannot be said to employ him within the terms of the judg. as a possible reason, that in a suit, although costs are not always ment on the previous point. But how is this to be reconciled with hostilely taxed, yet there may be a taxation where parties other than the maxim that a trustee is not to make a profit by his trust? the solicitor-trustee may appear and test the propriety of the costs, Perhaps the following is the true explanation. As we have seen, and the court could disallow altogether the costs of any proceedings this maxim must be interpreted by the fuller statement that a which might appear to be improperly undertaken. The rest of the trustee is not to put himself in a position where his duty and his court, Lindley and Lopes, L.JJ., agreei in condemning the excep- interest will conflict. Now a trustee who is steward undoubtedly tion in Cradock v. Piper, but followed Cotton, L.J., in considering makes a profit by his trust, but is there any conflict between his that it bad been too long established to be now overruled, and that duty and his interest ? Mr. Justice Kay thought there might be ; though the distinction between costs in a suit and those otherwise the Court of Appeal thought that the fixed amount of the fees incurred was anomalous, and rested upon no satisfactory reason, would avoid any such conflict. Hence there was no reason to yet it would not be right to fritter" away the case they were compel the solicitor-trustee to account to the trust estate for upholding by drawing a further distinction between a suit proper his share of the profits which his partner had received. and other less formal proceedings in court. The exception in Of course all that has been said above as to a solicitor-trustee's Cradock v. Piper is now, then, more firmly established than ever, costs holds only in the absence of special agreement or of a clause and also the restriction of it to the case of business done in a suit. in the settlement or will authorizing him to charge profit costs.

The costs under the second of the above headings raise no difficulty. The co-trustee had died, and the solicitor-trustee was therefore acting for himself alone. An attempt was made before Mr. Justice Kay to shew that the share of profits which he re

CASES OF THE WEEK. ceived from his London agent was a gratuity, but this, of course, failed, and these costs do not seem to have been mentioned on the


June. appeal. Then there were the profit costs charged by the solicitor-trustee

Ship--MARITIME LIEN-DISBURSEMENTS BY MASTER. acting on behalf of the receiver. At first sight it is difficult to and raised the question whether the master of a ship has a maritime Time

This was an appeal by the defendants from the decision of Butt, J., distinguish these from costs incurred in acting on behalf of co on the ship for disbursements made by him on account of the ship. The trustees. Lord Cottenham based the exception in Cradock v. action was brought by the master against the owners, and the mortgagees duty to act for his co-trustees, and, indeed, if the court had been target homet 12 W... 136, vit A. & E. S), and gave judgment for the Piper on the assertion that it is no part of a solicitor-trustees of the ship intervened as defendants. Butt, J., held himself bound by desirous of following that decision, it might have been easy to do plaintiff.

But, as we have seen, quite the contrary was the case. The Court (Lord Esher, M.R., LINDLEY and Lopes, L.JJ.) affirmed this Hence, as a receiver is different to a co-trustee, the court felt itself decision, and dismissed the appeal. Lord Esher, M. R., said that the free to go back to what it considered sound principle. We have question turned on the construction to be given to section 10 already stated Lord Cran worth’s enunciation of this in Broughton there in this should have jurisdiction over (inter alia) claimei pe v. Broughton (suprà, p. 556) to the effect that no one who has a duty to perform may place himself in a position to have his a master a maritime lien upon the ship? Jurisdiction was conferred. cit. interests conflicting with his duty. Now when a receiver of the similar words in certain cases by section 6 of the Admiralty Court dit: trust estate is passing his accounts, it is the duty of the trustee to

1840. There were certain matters over which the court had no jurisdic

tion until it was conferred upon them by statute. business, and therefore the interest, of the receiver's solicitor to absolute jurisdiction, and could enforce a lien against the ship. The coas uphold the charges which the receiver wishes to throw upon the Clusion axrived at by: Dr. Lushington in The Mary Anne was that the ends estate. Thus we are brought within the above principle. Possibly, in the statute a Tight out obforce one maritime lien, but it ceper under Cotton, ..., and, without saying anything of the solicitor certain tireuinstances, jurisdiction then forte a maritime ten, thepirete trustee's interest, merely to point out that he is in a position in what to do away with such exceptions, and to give the court which he has adverse duties to perform-a duty to the receiver enforce a maritime lien in all such cases. and a duty to the estate. The principle, then, is that a solicitor

Merchant Shipping Act, 1854, was to allow the Court of Admiralty, under very special circumstances, to enforce a maritime lien in favour of a

[ocr errors]

In certain other

[ocr errors]

another duty, to act adversely to his duty to the trust estate.


would discourage masters from making disbursements for the benefit of direct that it should be brought up in another religion would be injurious the ship, and would impose a fetter on very useful power. to the infant, and would, moreover, be a futile order. He directed that LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, Finlay, Q.C., and Nelson ; | the father should have reasonable access to the infant, and made an order Sir W. Phillimore, Q.C., and J. G. Barnes. SOLICITORS, Lowless & Co.; as to the terms of such_access.-COUNSEL, Lyttelton Chubb; Rawson. Ingledew, Ince, & Co.

SOLICITORS, A. B. Chubb; W. P. Barton Browne.


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



FRIENDLY SOCIETIES Act, 1875 (38 & 39 Vict. C. 60-COUNTY COURT

JURISDICTION-CERTIORARI. This was an appeal from a decision of Stirling, J. (ante, p. 286), the question being whether the domicil of the testator in the cause was, at the claimed an injunction restraining the committee of management from

In this case the plaintiff, a member of the defendant friendly society, time of his death, German or Anglo-Indian. The testator was born in making alleged unauthorized payments and from acting as such comIndia, his father being an oficer in the service of the East India Co. He mittee, and also claimed an order for the recoupment of misapplied pay, was himself an officer in that service, and be never left India until the

ments. year 1870. He left the service in 1868, and from that time till his death

The action was by plaint in the County Court of Liverpool, and he was in receipt of a Government pension. After 1868 he entered the and, according to the defendants, some $7,000 or more.

the sum involved was, according to the plaintiff's statement, some £1,600,

In a previous service of the Nizam of Hyderabad. Early in 1871 he left Hyderabad and similar action (ante, p. 269) Chitty, J., had made absolute a writ of went to reside at Darmstadt. He purchased a house there in May, 1872, certiorari, obtained by the defendants, for the transfer of the proceedings and lived there until the time of his death, with the exception of short to the High Court, on the ground that section 22, sub-section (d), and visits to England in each of the years 1871, 1872, 1873, and 1874 ; a visit section 30, sub-section 10, of the Friendly Societies Act, 1875, were perto India in 1874 for the purpose of obtaining a pension from the Nizam ; and some short visits to friends in Germany.

missive enactments, and did not o'st the jurisdiction of the High Court,

His will was made in 1874, and that the action was one which could be better tried in the High on the occasion of a visit by him to Wiesbaden. It was in the English Court. The defendants in the present action having obtaired a writ of form, and by it he gave his property to his grandchildren, to the exclusion of his children, whom, by the German law, it is not competent for a against the rule, that the effect of putting a permissive construction upon

certiorari nisi, it was now argued by the plaintiff, on shewing cause testator to disinherit. A good many witnesses deposed to their belief that section 22, sub-section (d), was that, whenever an application by a member tie testator was dissatisfied with Germany and desirous to live in England. of a friendly society was made under the rules of the society for, a Stirling, J., was of opinion, on the evidence, that the testator had acquired reference, the society might purposely delay giving a refererce until the a German domicil, and that he retained that domicil at the times of his aggrieved member, on the ground that “no decision had been made on will and of his death. It was argued on the appeal that a domicil of the dispute within forty days after the application to the society for a choice could be abandoned by mere expressions of intention, decision. Cotton, L.J., said that he understood the law to be this-that removal to the High Court, and by these means drag matters into the High The Court of APPEAL (COTTON, Bowen, and Fry, L.JJ.) affirmed the reference," sought the aid of the county court, as provided for by section 22,

sub-section (d), when the society would forth with apply for a certiorari for a man's domicil of origin remained, unless he had acquired a domicil of Court by declining to comply with its own rules. The plaintiff submitted choice by residence in another country with the intention of permanently residing there. If he abandoned his domicil of choice, his domicil of altogether futile, the result being that an enactment which was intended

that, if the enactment were treated as permissive, it could be rendered origin reverted. A mere intention to abandon the domicil of choice was by the Legislature to open the doors of the county court was, by means not enough ; there must be act as well as an intention. The abandonment must be animo et facto. The mere fact that a man began to enter.

of the interpretation put on it, rendered inoperative if the defendants, the not destroy his domicil of choice. The fluctuations of a man's mind were when proceeding against the society, tain doubts whether he had acted wisely in changing his residence would governing body of a friendly society, so willed, although the enactment

was intended to benefit plaintiffs who were members of a friendly society of importance in deciding whetber he had arrived at a determination to reside permanently in another country; but, when once the court came to

Chitty, J., said that the argument was an ingenious one. If, however,

a friendly society were to endeavour to creep out of its rules by the means the conclusion that he did intend to reside permanently in the country in pointed out by the present plaintiff, the court could still refuse to grant which he had taken up his residence, the subsequent fluctuations of his the writ of certiorari. He was of the same opinion as previously expressed mind were of no importance. On the evidence, his lorilship came to the (ante, p. 269) -- namely, that the Friendly Societies Act, 1875, a. 22, subconclusion that the testator had acquired a German domicil, and that he section (d), conferred a jurisdiction on the county courts, but did not take retained that domicil at the time when he made his will and at the time

away that of the High Court. The present case was a proper one for the
of his death. Bowen, L.J., said that when once a man had formed a High Court. The rule was made absolute, with costs to be costs in the
fixed and settled intention of residing permanently in a new country, in action. -Counsel, C. E. E. Jenkins ; Romer, Q.C., and Rutherford. Soli.
which he had taken up his residence, a change of domicil was effected, citors, Bordman 'g Co.; Gregory, Rowcliffés, & Co., for Bremner, Son, ģ
and that would not be undone by subsequent fluctuations of his opinion Pennington, Liverpool.
whether his act had been a wise one. Fry, L.J., concurred.-COUNSEL,
Pearson, Q.C., and Carson ; Graham Hastings, Q.C., and Farwell. Soli-
CITORS, H, W. Chalterton; F. Romer.

Re CRITCHLEY'S TRUSTS—Chitty, J., 18th June.

TION—LUNACY-TRUSTEE Act, 1850, s. 32
CONDON ». VOLLUM-Chitty, J., 14th June.

This was

a petition for the appointment of new trustees of a Infant–Religious Education—SEPARATION Deed-Right of FATHER, trust estate and a vesting order. It appeared that there were originally INFANT IN CUSTODY OF MOTHER--INFANTS CUSTODY ACT, 1882, s. 2: “CUSTODY OR CONTROL.

three trustees, two of whom survived, and it was asked that two trustees

only should be appointed. The evidence shewed that one of the two survivIn this case an application was made by a Protestant mother, married to

ing trustees had been attacked in January, 1886, by apoplexy, which had the plaintiff, a Roman Catholic, that her child, being the only issue of the

affected his mental condition, although not to any very serious degree, marriage and an infant of eight years of age, might be educated in the

but that his physical condition was such as to render him “; physically in

The question arose whether religion of the Established Church of England, the applicant undertaking competent to attend to or transact business." to maintain and support the infant. The action had been brought by the

an application should be made in lunacy. Re Martin's Trusts (35 W. R. applicant's husband for the enforcemen of a separation deed "made 524, 34 Ch. D. 618); Re Dewhirst's Trusts (35 W. R. 147, 33 Ch. D. 416), between him and the applicant, whereby it was agreed that, during the

were referred to. continuance of the separation, the applicant's father should maintain and

CHITTY, J., said that the case fell within section 32 of the Trustee Act,

With support the infant, and the applicant should have its custody and control. 1850, and he should make the order appointing new trustees. North, J., having made an order in the action giving the applicant the regard to appointing two instead of three, although he, for his own part, taking to bring it up in principles not at variance with the Roman Catholic number of trustees than the original number, yet he thought it preferable, faith, the question now

in the absence of special circumstances, to adhere to the original

SOLICITORS, Pritchard, Engleplaintiff maintained that, being the father of the infant, he had the number.-COUNSEL, E. S. Ford; S. Hall. legal right to control its religious education. The applicant had some field, & Co., for Earle, sons, & Co, Manchester; Bower, Cotton, & Bower, for time Wageans of her own, and was living with her mother. The plain. "Withington ; Pelly & Bontflorter, Manchester. tiff was without means, except what he earned, but offered to maintain

Re BALL, SLATTERY v. BALL-North, J., 14th June. CHITTY, J., said that it was admitted that the child was to remain in the custody of its mother. The Infants Custody Act, 1873, s. 2, enacted

WILL-CONSTRUCTION—“DIE WITHOUT LEAVING Issue.” that a separation deed providing that the father should give up the control This was a summons by one of the defendants, under rule 4 of order 25 he custody of the children of the marriage to the mother was not to be of the R. 8. C., 1883, to strike out the statement of claim, on the ground

The action was brought such deed, unless it was of opinion that to do so would be for the benefit to determine the construction of a will, and, if necessary, for the adminisof the children. He was of opinion that the words of the section “con tration of the testator's estate. The testator, whose will was made in

were large enough to include religious education. He 1809, and who died in that year, bequeathed the residue of his personal case also of opinion that it was for the benefit of the infant in the present estate to trustees on trust for sale and conversion, and to invest the When the infant was to be in the custody and control of its mother, to came to direct that it should be brought up in the religion of its mother. proceeds of sale in the purchase of real estate, or upon Parliamentary or

real securities, or in the purchase of stock in any of the public funds, and



the child.

trol or custody



[ocr errors]

registrar had reported that the bankrupt had systematically disobeyed the husband or for a different purpose derived support from the fact that orders of the court, and the bankrupt, though he was present, was not the draftsman had used the phrase with that signification at the end of called to deny the report made by the registrar. It must, therefore, be section 17. On the other hand, on behalf of the wife, it might be urged taken that he had systematically disobeyed the orders of the court, and that the construction "for the purpose of a trade or business carried on by on this ground the registrar ought not to have heard this motion until the the husband or in a different manner than by the husband " was more bankrupt had purged his contempt.-COUNSEL, Winslow , Q.O., and Sidney consonant with the usual meaning of the phrase, and was the meaning Woolf ; R. Vaughan Williams and Hansell. SOLICITORS, Munns g Longden; which the draftsman had bimself adopted on seven other occasions in the Barnett,

Act. It was an obvious criticism that, if the draftsman had intended the

meaning contended for by the trustee, it would have been simpler either Ex parte NORTON, Re MANSEL-C. A., No. 1, 17th June. to have said “lent for any purpose whatsoever” or to omit all reference WITNESS-NON-ATTENDANCE-ADJOURNMENT-Costs.

to the purpose of the loan, but the same observation was applicable to the The trustee in this bankruptcy moved to expunge a proof tendered by N., section 1, and to the phrase " either in contract or in tort or otherwise”

use of the words “ disposing by will or otherwise" in the first clause of which had been admitted by an oversight, and he served N. with a in the second clause of that section. subpana duces tecum to bring his books and accounts, and sent him £5 for his

His lordship guessed rather than expenses. N. demanded a larger sum for his expenses, and, not having by her to her husband for the purpose of any trade or business carried on

concluded that the draftsman meant to say “any money of the wife lent received the sum which he demanded, he did not appear at the time by him, whether alone or in partnership with others, and whether appointed for the hearing of the motion. trustee the hearing was adjourned, and Mr. Registrar Hazlitt ordered N. personally or by an agent,”. &c, and that he did not mean to say " for the to pay the costs of the adjournment.

purpose of any trade or business carried on by him or for any other purThe Court of APPEAL (Lord ESHER, M.R., and Lindley and Lopes, became somewhat clearer. Bovill's Act applied only to loans to traders,

pose.” When we got away from the language of the Act the atmosphere L.JJ.) held that there was no jurisdiction to make such an order. Lord and was founded on the principle that he who shared in the profits of a Esher, M.R., said that it was impossible to uphold the order. If the trade or undertaking should also run some risk of loss, and should, at any order was made on the ground of disobedience to the subpæna, the proper rate, not be allowed to prove for his capital or profits in competition with course would have been to call upon N. to shew cause why he should not the creditors who did not share in those profits. Similar considerations be committed for contempt. And in the character of respondent to the motion N. could not be ordered to pay the costs of an adjournment which

were applicable to a wife who lent money to her husband for the purposes was ordered at the request of the trustee.-Counsel, Cooper Willis, Q.c., must, under ordinary circumstances, share in the benefit arising from her

of trade or business, for, whatever might be the terms as to interest, she and R. Vaughan Williams ; Henry Kisch. SOLICITORS, Ellis, Munday, 8 Co.; husband's success. Beyfus & Beyfus.

There were, however, no circumstances under which a man who lent another money for purposes other than those of trade or

business was postponed to the claims of creditors, and no sufficient Ex parte POARD OF TRADE, Re STAINTON—Q. B. Div., 9th and 13th reason could be assigned why such a penalty should be imposed on a June.


Rule 237 provides, with regard to the discharge of a bankrupt, that
an appeal to the Court of Appeal shall lie at the instance of the
Board of Trade, and at the instance of the trustee (if any) from any

order of the court made upon such an application.In the present

Re AARON WRAY-C. A. No. 2, 22nd June. case an unconditional discharge had been granted to the bankrupt by the judge of the Newcastle County Court, and the Board of Trade SOLICITOR-ATTACHMENT-DEFAULT IN PAYMENT OF Money-Receiving appealed from that decision on the ground that some penalty ought to

ORDER-JURISDICTION-DISCRETION-APPEAL-DEBTORS Act, 1869, s. 4 have been imposed. A preliminary objection was, however, taken to the

-BANKRUPTCY Act, 1883, ss. 9, 10. validity of rule 237. It was argued that under section 127 of the Bank This was an appeal from the decision of North, J. (ante, p. 495), the ruptcy. Act, 1883, the general rules made must be " for carrying into effect question being whether an attachment ought to have been issued against the objects of this Act"; that by section 104 an appeal may only be a solicitor for his default in not paying a sum of money which he had brought " at the instance of any person aggrieved,” and that the Board been ordered to pay in his character of an officer of the court. Section of Trade were not "aggrieved” by an order of discharge being granted.

4 of the Debtors Act, 1869, excepts from the abolition of imprisonment THE COURT (MATHEW and CAVE, JJ.) overruled the objection. for making default in the payment of a sum of money

"default by a MATHEW, J., said that the point which the court had to determine was solicitor in payment of a sum of money when ordered to pay the same in whether rule 237 had been shewn not to be a rule "for carrying into his character of an officer of the court making the order." Section 9 of effect the objects of the Act.” It was said that the statute confined the the Bankruptcy Act, 1883, provides that, after the making of a receiving right of appeal to a “person aggrieved" and that the Board of Trade was order against a debtor, “ except as directed by this Act, no creditor to not a “person aggrieved.” Ought the court to put that narrow construc. whom a debtor is indebted in respect of any debt provable in bankruptcy tion, on the words? One of the chief objects of the Act was to impose shall have any remedy against the property or person of the debtor in on the trustee, where the court had overlooked something in a case of dis- respect of the debt, or shall commence any action or other legal proceed. charge, the duty of appealing for the purpose of setting it right. Rule ing, unless with the leave of the court, and on such terms as the court 237 substituted the Board of Trade for the trustee. Instead of compelling may impose." And by sub-section 2 of section 10." the court may at the trustee to exercise bis power, the Board of Trade could do it itself. any time after the presentation of a bankruptcy petition, stay any action, The purpose of the rule was to forward the objects of the Act. Cave, J., execution, or other legal process against the property or person of the concurred.--Counsel, E. Cooper Willis, Q.C.; The Attorney-General ; Muir debtor, and any court in which proceedings are pending against a debtor Mackenzie. SOLICITORS, Hopwood f Sons; The Solicitor to the Board of may, on proof that a bankruptcy petition has been presented by or

against the debtor, either stay the proceedings, or allow them to continue

on such terms as it may think just.” In the present case the solicitor Ex parte TIDSWELL, Re TIDSWELL-Cave, J., 14th June. had acted as solicitor to the trustees of a will, and had received from BANKRUPTCY-LOAN by Wife to HUSBAND OUT or SEPARATE ESTATE, invest them, but applied them improperly, and on the 7th of March, on

them some trust moneys for the purpose of investment. He did not FOR PRIVATE PURPOSES RIGHT OF PROOF – MARRIED WOMEN'S PROPERTY Act, 1882 (45 & 46 Vict. c. 75), s. 3.

the application of the surviving trustee and the residuary legatees, North,

J., made an order that the solicitor should, on or before the 7th of April, Section 3 of the Married Women's Property Act, 1882, provides that pay the moneys in question, “ being moneys in his hands and received by 'Any money or other estate of the wife lent or intrusted by her to her him as solicitor" for the trustees, to the surviving trustee. The order husband for the purpose of any trade or business carried on by him, or was served on the solicitor personally on the 22nd of March, but he failed otherwise, shall be treated as assets of her husband's estate in case of his to obey it. On the 27th of April a notice of motion, dated the 22nd of bankruptcy, under reservation of the wife's claim to a dividend as a April, was served on the solicitor by the persons who had obtained the creditor for the amount or value of such money or other estate after, order of the 7th of March, asking that they might be at liberty to issue a but not before, all claims of the other creditors of the husband for valuable writ of attachment against the solicitor for his contempt in not paying consideration in money or money's worth have been satisfied.” Between the money pursuant to the order. Meanwhile, on the 25th of April, å

years 1874 and 1877 the wife of the bankrupt lent to her husband receiving order in bankruptcy had been made against the solicitor upon sums amounting to over £900, of which £782 was still owing at the date the petition of another creditor, but the applicants were ignorant of this for private purposes unconnected with his trade or business of a wholesale that, notwithstanding the receiving order, he had jurisdiction to allow the warehouseman and wine merchant.

A proof tendered by the wife for this attachment to issue, because an attachment against a solicitor for the non4782, was rejected by the trustee in the bankruptcy on the ground that payment of money which he had been ordered to pay in that character under section 3 the claim of the wife to a dividend must be postponed was not a merely civil process for the recovery of the debt, but was in

hare, J., allowed the appeal. After referring to the other places in tion given to the court by section 10 of the Bankruptcy Act, he declined efections 1, 13, and 14, and on the first occasion of its use in section 17, receiving order, no benefit could result to the applicants from the attachthe phrase appeared to be equivalent to "in a different manner. sections 7 and 10 it seerned to mean " of a different character." On the

In ment, and the issue of it might embarrass the bankruptcy proceedings. second occasion of its use in section 17 it had the meaning of “for a

But his lordship ordered the solicitor to pay the costs of the motion. On

the hearing of the appeal it was admitted by the solicitor's counsel that The contention of the trustee that the words in the receiving order did not deprive the court of jurisdiction to issue the section 3 meant “for the purpose of a trade or business carried on by the attachment; and on behalf of the appellants it was urged that the result



[ocr errors]

different purpose.

« PreviousContinue »