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as a lender of ordinary prudence would have ventured to act upon. absolutely limiting sense, and it may, therefore, be asked whether It disclosed the fact that there were only ten acres of land, and his interpretation is not on that very account open to cavil. It that a not inconsiderable portion of the subjects consisted of appears to us that an adequate answer may be given to such an buildings and fixed machinery used for brickmaking. But it did objection. In the case of an action where the amount claimed is not state either the aggregate value of the subjects or the separate alone beyond the jurisdiction, some of the relief sought may originvalues of the land, the buildings, and the machinery. It did, no ally be granted in the county court; in the case of an action doubt, contain the statement that the valuer thought the land, where the claim is in its nature beyond the jurisdiction, no part of premises, and freehold fixtures would afford good security for the relief sought can originally be granted in the county court: £3,500; but trustees who chose to act upon such an opinion must the former case does, the latter does not, fall within the wording take the risk of the security proving insufficient.”
"any relief” in section 67. In Stooke v. Taylor (29 W. R. 49, The result of the decision is that to the three rules laid down by Mr. 5 Q. B. D. 577) it was contended that section 67 had the effect of Justice Kay in Fry v. Tapson-viz., (1) that the valuer employed extending section 5 of the County Court Act, 1867, so as to deprive by trustees must be a surveyor having local knowledge ; (2) that he a plaintiff of costs in an action of contract in which the amount remust be selected by the trustees and not by their solicitor; and covered was between £20 and £50. In refusing to accept this (3) that he must not be recommended or employed by the other contention, Cockburn, C.J., made the following comments on secside in the transaction—there must be added a fourth-viz., (4) tion 67 :-" The purpose and effect of the enactment that the valuer must not content himself with stating that the had reference to the nature and character of the relief sought. property is a good security for the sum proposed to be advanced,
The intention and effect of the enactment was to establish lut must state all details bearing on its value as a security; and I a uniform rule as to all cases in which a concurrent jurisdiction the trustees must exercise such an independent judgment on the was exercised by the county court” (29 W. R. 54, 5 Q. B. D. 578). report as an ordinarily prudent man of business would exercise This last expression is significant; in Sampson v. Mackay (17 W. R. when lending his own money.
883, 4 Q. B. 643) it had been held, before the Judicature Acts came into force, that section 5 of the County Court Act, 1867, deprived a plaintiff of costs who recovered less than £10 in an
action of slander; it would seem as if the late Chief Justice had REMISSION OF ACTIONS OF TORT TO THE
such a case in contemplation on the above occasion. COUNTY COURT.
From the foregoing inquiry, we submit that the true interpreta
tion of section 67 of the Judicature Act, 1873, is to limit, not—as II.
decided in Stokes v. Stokes—to amplify, the operation of the It is unfortunate that Garnett v. Bradley should apparently have provisions of the County Court Act, 1867. We submit that, prior been the only authority brought to the attention of the courts in to the Judicature Acts, the application of those provisions to cases Stokes v. Stokes. There are several other cases which, we think, in which the county court had no original jurisdiction involved a might have been cited with advantage, which, if cited, would, we number of gross anomalies, of which it was the object of section 67 believe, have led to a different result. Thus, in Parsons v. Tinling to get rid. Finally, we submit that any reason the Legislature (2 C. P. D. 119) a divisional court (Lord Coleridge, C.J., and may have had for excluding actions for malicious prosecution, libel, Grove, J.) anticipated the view of Lord Blackburn that section 67 slander, breach of promise of marriage, or seduction in section 58 restricts the operation of the county court provisions to actions in of the County Court Act, 1846, from the original cognizance of a which the relief sought could have been originally granted in the county court, obtains with equal force for excluding such actions county court. A somewhat similar view is involved in the recent from being made the subject of transfer to such court; and on all case of Saywood v. Cross (33 W. R. 135, 14 Q. B. D. 53), where it these grounds we submit that the decisions in Stokes v. Stokes are was held by Mathew and Šmith, JJ., that a plaintiff who claimed unsound in law. £200 but only recovered £20 damages in an action for breach of promise of marriage was entitled to costs on the High Court scale, on the ground that R. S. C., 1883, ord. 65, I. 12, REGISTRATION UNDER THE LAND TRANSFER BILL. only restricts costs to the county court scale where action of contract could have been originally commenced in This Bill is to be withdrawn, but the subject will, no doubt, be rethe county court. None of the foregoing cases deal directly vived next year. The following remarks on the latest edition (as with section 10 of the County_Court Act. with Chatfield v. Sedgwick (27 W. R. 790, 4 c. *P. D. 459), te endeavoured to restrict them to points not dealt with in the many which we may next refer.
In that case an action was broughť to previous able criticisms which have appeared. recover £57 10s., balance for work done and money lent. The defend
1.-COMPULSION. ant set up a counter-claim for certain moneys due from the plain The form of compulsion proposed in clause 2 does not seem to be tiff. The action was referred to the certificate of a master, costs to happily chosen. An unregistered conveyance is to operate only as a abide the event. The master certified that £16 1s. 5d. was due on contract, and is to confer no right “except the right of enforcing the the claim and £23 on the counter-claim; and that there was thus contract.” The question arises, What sort of a contract is it to a balance
£6 188. 78. due to the defendant from the operate as ? Is it intended that it shall operate as a contract to conplaintiff, whom he directed to pay the costs. The master vey according to its tenor ? If so, why is it not so declared ? Such having taxed the defendant's costs of the action, the plaintiff con- meaning. The addition and the costs of such a conveyance shall tended that he was entitled to the costs of the action, as he not be allowed on taxation could not have sued for the amount claimed in the county court. In Bill had no confidence in the previous part of the clause, as he giving judgment dismissing the plaintiff's appeal, Jessel, M. R., said": condescends now to the triviality of the bill of costs. If a solicitor
The argument of the appellant is, that if'a plaintiff, by his honestly advise a client to convey without registering, and the advice writ, claims a sum exceeding £50, the 67th section of the Judica- be good, why is he not to be paid for his work? An Act of Parliaprofilet, 1873, does not apply. "That section provides that the ment cannot force people to be dishonest, and, doubtless, an honest provisions contained in the 5th, 7th, 8th, and 10th sections of the
client would pay notwithstanding. County Court Act, 1867, shall apply to all actions commenced or
II.- COMPENSATION. pending in the said High Court of Justice in which any relief is The Bill adopts the principle of a guaranteed title with compensasought which can be given in a county court." In my opinion this tion to persons injured by its operation. It is certain that something county court, and does not mean where relief is sought only of such wholesale or enormous expense to be thrown on the registering section 67 in a limiting sense, and it is very much to be regretted favour of restoring the land or right to the original owner and payDestinge it is evident that the late Master of the Rolls understood been ignored or overridden, or to him whose title has been guaranteed? that this case should not have been brought before the courts ing the money to the guaranteed proprietor; but a difficulty arises Sir George Jessel does not interpret section 67 in an ten or twenty fold. The true principle seems to be to distinguish
between urban and rural property, and, in the latter case, to restore might have been cited with advantage. We can hardly blame the the land. The argument for this course is strengthened by the con- editor for this omission, as it is the custom, more honoured in the sideration that it is to the latter, for the most part, that the owner breach than the observance, for writers of text-books to neglect blackattaches a fancy value from its amenities or ancestral or historical | letter cases. associations, whereas urban sites are principally valued for their The editor has grasped the principle, too often forgotten even by pecuniary eligibility. Where property is of a mixed character a judges, that “a judgment only binds the beneficial interest of the discretion should be given to the tribunal.
debtor in the lands over which he has a bona fide disposing power, Compensation is to be given in cases of fraud or forgery, or the the judgment is only made a charge on what was at the time really error of the Land Transfer Board. Such an error could not arise, it the property of the debtor” (p. 6). “It must therefore be taken is apprehended, if the board conforms to the Act and the rules pre- as settled that a judgment creditor is not a purchaser within the scribed. A loss might, however, occur from the working of the Act meaning of the statute 27 Eliz. C. 4, and that the statutes 1 & 2 Vict. itself, especially having regard to Part III. relating to confirmations c. 110, 8. 13, and 27 & 28 Vict. c. 112 have not altered his position in of title, simply from a dormant claim having been overlooked. Such this respect” (p. 227). a loss should be a subject of compensation.
We are particularly pleased with the discussion of the Bills of Sales
Acts (p. 135, et seq.), which is a valuable addition to the literature III.-INSURANCE.
on this intricate subject. In discussing what is "in accordance with Whether a premium of insurance should be charged to cover claims the form in the schedule annexed to the Act,” the editor says:for compensation has not, I think, been discussed in connection with The bill of sale may diverge substantially from that form in either the present heavy ad valorem duties on conveyances, mortgages, &c. of the two following ways, and in each such case is void. It may If it be intended to free registered dealings from these imposts, the thereby have a legal consequence or effect either greater or smaller
It proposed premiums of insurance would be small in comparison, but, than that which would attach to it in the prescribed form. if otherwise, those duties should be deemed to cover insurance.
may also thereby depart from that form in a manner calculated to
mislead the borrower. Whatever form the bill of sale takes, the IV.-CONFIRMATION OF TITLE.
form adopted by it, in order to be valid, must produce not merely These provisions, fortunately optional, were singularly ill-conceived. whole legal effect, and nothing but the legal effect, which it would
the like effect, but the same effect—that is to say, the legal effect, the The proprietor desiring to have a possessory title confirmed as abso- produce it cast in the exact mould of the schedule” (p: 139). lute, was to advertise once a year in the "prescribed ” newspapers for no less than five years, and to serve notice on all incumbrancers; been reported after the book was printed, decides that an attorn;
Hall v. Comfort (35 W. R. 48, 18 Q. B. D. 11), which must have and every person who had lodged a caution, or whom the board ment clause contained in a mortgage by demise is not rendered void might direct; and this twice over, first immediately after his applica- by the Bills of Sule Acts, and ought to be noted up at p. 140. We tion, and again after the expiration of the five years, and any of think it is only right to state, however, that the general opinion of the these persons was to be enabled to come forward and litigate. What an opportunity for bogus claimants and blackmailers ! No landowner profession is that the decision in Hall' v. Comfort is of very doubtful with a sound title would dream of availing himself of this part of the it will not be very difficult to evade the bills of Sale Acts. We agree,
authority, and that, if the reasons given in the judgment are correct, Act, but one with a shaky title might do so as he might thereby however, in the conclusion of our author at page 140, advanced by him clear it. These proposals combine a maximum of inconvenience and with pardonable hesitation, " that if the true intention of the morta expense with a minimum of safety.
The object desired would be secured far more safely and economi- gage is not to create a bill of sale, the whole deed will not be avoided cally by enabling the board to guarantee any title which, under the simply because, quâ a particular clause in it not being part of its real present practice, a willing purchaser would be advised to accept as
purport and intention, the mortgage deed required registration.”. a safe holding title.
The treatment of marriage consideration" and of the intricate
questions that occur in “ gifts inter vivos" deserves much praise. V.-ADVERSE POSSESSION.
We are not aware of any treatise containing so full a discussion of the Section 21 of the Act of 1875 is not proposed to be repealed. A latter questions as is contained in this book. registered proprietor, therefore, is to have a title from which no
In conclusion, we can heartily recommend this book to our readers, length of adverse possession can derogate, and this after the not only to those who are in large practice, and who merely want à minister responsible for the Bill, some few months since, assured the classified list of cases, but to those who have both the desire and the public that his scheme was to be based on the policy of shortening the leisure to enter upon a systematic study of our law. period of limitation. This period, no doubt, is proposed to be shortened as against a claimant for compensation, whose rights have
LIBEL AND SLANDER. been ignored or overridden, yet abolished altogether in favour of a A DIGEST OF THE LAW OF LIBEL AND SLANDER. By W. BLAKE registered owner. This partiality is as strange as it is unjustifiable. It would be well that those upon whose advice and experience
ODGERS, M.A., LL D., Barrister-at-Law. SECOND EDITION. Parliament must necessarily rely would make up their minds
Stevens & Sons. decisively whether there is to be a term of limitation in respect of The first edition of this book, which appeared in 1881, has well land adversely held at all; and, if so, what the period should be if stood the test of time, and has come to be accepted as a full, accurate, different terms are to be fixed in reference either to the character of and satisfactory guide upon its subject, and, inasmuch as the author the property, right, or clain, or to the nature of the ownership; that adopted the comparatively new and bold form of “stating the law they should ke able to give intelligible reasons for such differences and on each point in the form of an abstract proposition, citing the de: for giving privileges to one set of owners which they decline to offer cided cases in smaller type merely as illustrations of that abstract to a less favoured category.
proposition,” he may be considered to have achieved a more than GREGORY W. BYRNE. ordinary success.
Since the appearance of the first edition the statute law has been altered by the Newspaper Act of 1881; the Rules of 1883 have much modified the practice, and the
case law has been REVIEWS.
supplemented by any decisions, of which those bearing on blas.
phemy, the rights of married women (see, e.g., Seroka v. Kattenburg, VOLUNTARY DISPOSITIONS OF PROPERTY.
34 W. R. 542), criminal informations (see, e.g., Yates v. Reg., 33 A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT Labouchere, 32 W. R. 861) are the best known. In these and bithir
W. R. 482), and the liability for libelling the dead (see, e.g., Reg: v: ConveYANCES ; THE BILLS OF Sale Acts, 1878 and 1862, AND points Mr.'odgers has fully (sometimes perhaps too fully) brought his THE LAW OF VOLUNTARY DISPOSITIONS OF PROPERTY.
By the late H. W. MAY, B.A. SECOND EDITION. By S. W. WORTHING
up to date, referring, for instance, to a case so recent as Spokes TON, M.A., Barrister-at-Law. Stevens & Haynes.
v. Spokes, decided only on the 2nd of June. His comments In this second edition of a useful book the editor says :-“No pains stance, do not quite satisfy us in point of form, as he prints the
on the Newspaper Act, however, though very good in subhave been spared to make the revision of this book as perfect as possible, and to include every case which may appear to bear upon and once without them in the Appendix. The chapter on blasphemy
Act section by section twice over, once with notes in the text its subject matter, so as to make it a complete and trustworthy book has, of course, been very much expanded, and Mr. Odgers coma upon the subjects of which it treats.” book we think that this statement is nearly correct, as the only cases
After a careful perusal of the mits himself to the proposition (see p. 442) that “ honest error iş which are omitted occur in the early reports. For example, in dis- and dispassionate," and although he distinguishes very properly cussing the question as to how far a donor has a locus pænitentiæ in between apostacy' and blasphemy, and half shelters himself under cussing gifts of chattels made by actual delivery to the doned, the looking to the terms of the Blasphemy Act (9 Will. 3, c. 35), this case of the Wardens of the Minor Brothers of London (110 74.4 319 | expression goes too far, and that, though it may be a right exposi
Aug. 6, 1887:
THE SOLIČITORS JOURNAL
CASES OF THE WEEK.
Act, 1882, s. 9-FORM IN SCHEDULE.
Interpleader issue, in which the plaintiff claimed, under a bill of sale from have been told more about Reg. y. Ensor, in which Mr. Justice Stephen the execution debtor, certain goods seized in execution by the defendants. ruled at Cardiff in February last that a libel on the dead is not The bill of sale, which was given as security for a loan, contained a criminal unless it can be proved to have caused injury or annoyance covenant by the mortgagor to pay all rents, rates, taxes, and interest on to the living, and laid it down, according to the Times report, mortgages (if any) payable in respect of the messuage and premises where "broadly, that to libei the dead is not an offence known to our the goods then were or might be removed to; and there was a declaration law." This case is three times referred to by Mr. Odgers, but that when the money was paid off the mortgagee would give the mortnowhere does he state the effect of it.
gagor a receipt in full of all demands under or in respect of the premises Both the Rules of the Supreme Court and the County Court and indorse a copy thereof upon the indeuture, but the indenture, and any Rules bearing on the subject are very properly, inserted; loan, should remain in the custody and be the property of the mortgagee. but we think the author has gone too far in noticing points Mathew, J., held the bill of sale bad as not being in accordance with the of general practice, such as motion for new trial (seep. 581) form. The plaintiff appealed. and the like. It is a pity to weaken a good book by the in The COURT (Lord Esher, M.R., LINDLEY and LOPES, L.JJ.) dismissed troduction of extraneous matter. In this and other directions, as the appeal. They said that the stipulation as to the retention of the considerable enlargement was a matter of necessity, it would have ì indenture by the mortgagee was clearly not contained in or authorized by been well to exercise a little self-restraint, but, speaking generally, the form, and was not a mere futile stipulation, as it gave to the mortthe book continues a very good one, indeed, perhaps, one of the best gagee a greater legal right than was given to him by the statutory form. in the hands of the profession upon any subject. We are glad to find
A mortgagor on paying off the mortgage debt had a right to have the that references are still supplied to all the current reports, and that documents given up to him, but this stipulation deprived him of that right, the index and table of cases appear to have had as much labour in and so the legal effect of the bill of sale was different from what it would proportion spent upon them as the text.
be il drawn in the statutory form. The bill of sale was also void on the other ground, for by the covenant to pay interest on mortgages the mortgagor would have to pay interest not only on mortgages which gave
a power of distress for the interest as rent (which perhaps might be for the CHIEF RENTS.
maintenance of the security) but also on mortgages which contained no THE LAW OF RENTS, WITH SPECIAL REFERENCE TO THE SALE OF
such power of distress, and where therefore the goods could not be seized.
This covenant therefore could not be for the maintenance of the security.
The bill of sale was therefore void.-COUNSEL, Lyon; E. Tindal Atkinson
REYNOLDS v. COLEMAN-C. A. No. 2, 30th July.
CONTRACT TO BE PERFORMED WITHIN THE JURISDICTION. The principles relating to the alienation of land in consideration of a A question arose in this case as to the validity of the service of a notice of rent-charge are carefully stated, and the cases and authorities are the writ on the defendant out of the jurisdiction. Rule 1 of order 11 provides collected with great industry. The precedents given at the close of that " service out of the jurisdiction of a writ of summons or notice of a the book embrace a very extensive collection of forms of agreements, writ of summons may be allowed by the court or a judge wherever (inter conveyances, mortgages, releases, and other dealings with chief alia) (e.) The action is founded on any breach or alleged breach within the rents. As regards its special subject, indeed, the book is exhaustive jurisdiction of any contract, wherever made, which, according to the terms in design and treatment, and should prove of great and constant thereof, ought to be performed within the jurisdiction, unless the defend
ant is domiciled or ordinarily resident in Scotland or Ireland.” The value to Lancashire practitioners, and of considerable assistance to plaintiff in the present case was resident in England ; the defendant was conveyancers elsewhere who occasionally come across chief-rent à domiciled American resident in the United States. The action was property. The statements of cases we have checked we have found brought to enforce the specific performance of a contract by the defendaccurate, though occasionally somewhat too diffuse. It is to be ant to transfer to the plaintiff some fully paid-up shares in a company remembered, however, that the book is no doubt intended for the whose registered office was in England. The contract was made in use, among others, of practitioners who have no extensive law England, but it did not contain any express statement that it was to be libraries at hand. There is, we think, throughout the book a lack performed in England. A notice of the writ was, by leave of the court, cf terseness ; some want of proportion between the space allotted served on the defendant in America. He did not enter an appearance, and and the importance of the subjects, and too much tendency to the plaintiff obtained judgment for specific performance by default. The travel into collateral subjects.
We quite appreciate the difficulty defendant afterwards moved to discharge the order for service out of the of drawing the line as to how far the law relating to rent services that rule 1 (e.) of order 11 did not justify the former order. Kay, J., re
jurisdiction, and to set aside the judgment founded on it, on the ground should be treated, but we cannot agree in the advisability of going fused the application. On behalf of the defendant it was contended that so fully into it as the authors have done. We think that there are the rule required that the contract in question should contain an express here the materials for an excellent book on chief rents, but they seem to us to want" boiling down,” with a considerable proportion of the at any rate, the contract in the present case was not necessarily to be present contents left out.
performed within the jurisdiction, because a transfer of the shares might be executed by the defendant anywhere.
THE COURT OF APPEAL (COTTON and BOWEN, L.JJ.) affirmed the decision. They held that it was not necessary that the contract should ex
pressly state that it was to be performed within the jurisdiction. It was It is stated that at the Tourton Police-court on Wednesday a case was sufficient if it appeared from the contract, taken in connection with the called on in which the mayor, who presided, was a witnees, and the pro- surrounding circumstances, that it was to be performed within the juris. the bench. The mayor refused, and the case was ultimately adjourned to the transfer of the shares had been delivered to the plaintiff, and that enable the Home Secretary to be communicated with.
would have to be done in England. Therefore, the contract “ought, Ai the Stafford Assizes a dispute which had arisen between a coroner and according to its terms, to be performed within the jurisdiction.” Con. his lung came before Mr. Justice Grantham for decisiont weeran ioquest head scquently, the rule applied, and the service was good. – Counsel, Ince, et Punstall to inquire into the death of commandemic bad been kind in the Q.o., and s. Dickinson, Marten, Q.o., and Bramwell Davis. Solicitors, Clanway Colliery the jury gave a verdict that the occurrence was acci
Francis & Johnson ; Slade Munk. dental, expressing at the same time their opinion that a stricter super
Re ARDEN–0. A. No. 2, 1st August. vision by the manager of the mine was required. The coroner refused to incorporate this rider in the inquisition, and as the jury, on the other
APPOINTMENT OF NEW TRUSTEES-EVIDENCE OF FITNESS-Costs. hand, declining to sign the inquisition unless the rider was included, the This was a petition (in lunacy) for the appointment of a new trustee. coroner bound them over to appear at the assizes and explain their con Two affidavits of the fitness of the proposed new trustee were filed. duct. The learned judge expressed his opinion that, strictly speaking, The Court (Cotton and Fry, L.JJ.) allowed the costs of the affidavits.
But Cotton, L.J., said that he had often already stated that one affidavit cise. At the same time, riders to a verdict were often very valuable, and made by a' credible witness of the fitness of a person proposed to be best course would be for the jury to find the verdict itself and sign it, and future whether it should allow the costs”of a second affidavit.—Counsel, then on the same paper, lower down, to add their rider and sign that too. C. Browne. SOLICITORS, S. W. Johnson & Son.
at chambers, ex parte and without filing any affidavits, for liberty to in. Re CLARKE, COOMBE v. CARTER-C. A. No. 2, 3rd August. spect the accounts of B. and of the company. B. and the company moved MORTGAGE-ASSIGNMENT OF AFTER-ACQUIRED CHATTELS-UNCERTAINTY to rescind the order, on the grounds that section 7 did not apply when SPECIFIC PERFORMANCE-DIVISIBLE CONTRACT.
the person whose account it was desireä to inspect was a party to the pro.
ceedings, and that the order should not have been made ex parte and This was an appeal from a decision of Kay, J. (35 Ch. D. 109, ante, p. without affidavits. Kekewich, J., refused the motion, but limited the 302). The question was whether a mortgage contained a valid charge , inspection to the period beginning with the formation of the company. upon a legacy which came to the mortgagor several years after the execu THE COURT OF APPEAL (Cotton, Bowen, and Fry, L.JJ.) affirmed the tion of the mortgage deed. By a deed dated the 18th of January, 1876, decision. Cotton, L.J., said that it would, no doubt, be better in general H., in consideration of £800 then lent to him, assigned to the mortgagees that such orders should only be made on notice ; but it was clear that the “all the household goods, and also all live and dead arming stock, Act allowed the order to be made ex parte. The word "party" was not tenant's rights and interests of the mortgagor of, in, or upon any farm limited to a party to an action, but it included it, and could not be renow held, or which during this security may be held, by the mortgagor; stricted to a third person. Ir some cases an affidavit ought to be required also all real and personal estate to which the mortgagor shall become to shew that the inspection would be material, but it appeared irjin the entitled under the will of his father; also all moneys of or to which he pleadings in the present case that the inspection would be material. If now is, or may during this security become, entitled under any settlement, there were any allegation that the inspection was sought not honestly, will, or other document, either in his own right, or as the devisee, legatee, but for some indirect object, the court should require an affidavit. The or next of kin of his father, or any other person or persons.” In April, issue in the action was whether the defendant B. did or did not appro1881, H. filed a liquidation petition, and all his property became vested in priate money which ought to have gone to the company, and his banking a trustee appointed by his creditors. On September 13, 1884, a testator, account was clearly most material to the plaintiff directly for the purposes not the mortgagor's father, died, under whose will H. became entitled to
of the action. The primary object of the Act was to enable evidence to a share of his residuary property. The question was whether this share be given at the trial of material matters, though it might be applied to was bound by the mortgage. Kay, J., held that it was.
other cases. It took away the power of summoning a banker to produce The Court of APPEAL (COTTON, Bowen, and Fry, L.JJ.) affirmed the his books at a trial, and in that respect it was for the relief of bankers. decision. Cotton, L.J., said it was clear that at law the assignment The Act enabled copies of entries in bankers' books to be taken and given would not pass any future property of the assignor, though it might be in evidence. Obviously a suitor could not tell what entries to copy enforced in equity as a contract to assign future property, when that pro. without inspecting the books. The Act, therefore, clearly gave to suitors perty should fall into possession. The principle on which assignments of an enlarged power of investigation, a right of inspection which they non-existent property were made effectual in equity must be this-that would not previously have had until the books had been produced and put there was a contract of which a court of equity would enforce specific in evidence. It had been urged that this would, in effect, give the suito. performance, and this was so laid down by Lord Westbury in Holroyd v.
a greater right of discovery, but discovery was the getting something in Marshall (10'H. L. Cas. 191). As a general rule a court of equity would not aid of a suitor's case from his opponent. The Act enabled a suitor to specifically enforce a purely executory contract for the purchase and sale examine bankers' books that he might see what entries should be given in of goods, because damages would be a sufficient compensation for any evidence. The power should be used only for the purpose of proceedings, loss arising from a breach of the contract. It was different in the case of and the judge should be careful not to give too large a power of inspec, a contract for the sale of real estate. But in the present case the money tion, and should limit it to that period of the account which was material had been already paid by the mortgagee, and the mortgagor, who had in the proceedings. In the present case the court had come to the con: got the money, had got it on the faith of an assignment which went clusion that they could not, without defeating the object of the Act and further then the law would allow. The contract must be one of such a
without doing injustice, fix any further limit than Kekewich, J., had wature that a court of equity would enforce the specific performance of it. done. Bowen, L.J., said that, before the Pankers' Books Evidence Act, There might be cases in which it would be impossible for the court to 1876 (for which the Act of 1879 was substituted), there was no power of identify the particular property, and then the contract would be open to discovery from a bank, except by an order to examine the persons who had the objection of vagueness. Some vagueness was necessarily incident to a made the entries in the books of the bank, and to produce the books. contract to assign future chattels. But this would be no objection if the That could be done under the Common Law Procedure Act before the property was capable of being sufficiently identified at the time when the trial ; but it was a cumbrous process, and was not in practice resorted to. contract was to be performed. There might be a contract to assign The practice was to subpoena at the trial the person who had made the future property expressed in such wide terms that it would be wrong to entries, and then he produced the books and referred to them to refresh his enforce it against the assignor, because it would deprive him of the means
memory. The primary object of the Act was to facilitate evidence at the of paying his creditors, and would be open to the objection established by trial. It was not necessary to say whether it might be used to obtain the law of bankruptcy to assignments of the whole of a man's property to inspection where a right to discovery would have existed if the books had une creditor.
That was so in Re D'Epine::l (20 Ch. D. 758). The con been in the defendant's possession ; the primary object was to save bankers tract in the present case was a divisible one. There might be some trouble. In order to get copies of the entries it was necessary that the general words in the deed so wide that the court would not enforce them. suitor should look at the books and see what he wanted, and, therefore, it But the court had now to deal with the clause which related to moneys
was necessary to give an extended power of inspection. The judge ought, coming to the mortgagor as a legatee. In his lordship?s opinion that therefore, to be careful to limit as closely as possible the extent of the power clause was not to general in its terms ; it did not deal with the whole of of inspection. It was impossible to say that the order of Kekewich, J., had the mortgagor's property, but only with that which might come to him given more than was necessary for the purposes of the issue at the in a particular way. Was the clause too vague? The vagueness must be trial, which was whether or not there had been fravd during the period one which was not capable of being removed at the time when the contract was to be performed. In the present case the property was as
to which the inspection was limited. Fry, L.J., concurred. The word capable of being identified as almost any kind of property. The decisions
"party" included a party to the action, although the argument had been as to covenants in marriage settlements to settle future property of the observed that the second recital in the preamble to the Act of 1876 said
that the word meant every person who was not a party. It was to be wife were in point. Such covenants, no doubt, were not open to the that it was expedient to facilitate the proof of the transactions recorded in objection that they included all the property of the wife, but it would be bankers' ledgers and account books.
The same motives existed when the impossible to say that words which would not be too vague if they were contained in a covenant in a marriage settlement would be too vague if increased power of inspection. -Counsel, Herbert Reed and G. E. Hum. they occurred in a covenant in a mortgage. The present case was very phreys; Warmington, Q.C., and Suinfen Eady. SOLICITons, Blair f Girling ;
Act of 1879 was passed, and it was clearly one of its objects to give an like Bennett v. Cooper (9 Beav. 252), in which a similar contract was enforced. In his lordship's opinion, the Court of Exchequer Chamber, in
Beall f Co, Belding v. Read ( 3 H. & C. 955), were wrong in their construction of the covenant then in question, and he had expressed this opinion in Clements v.
CHALLENDER v. ROYLE-O. A. No. 2, 22nd July.
The Official Receiver v. Tailby (18 Q. B. D. 25) PateNT-THREATS BY Patentee_or LEGAL PROCEEDINGS-INJUNCTION—
Patents, DesiGNS, AND TRADE-MARKS ACT, 1883, s. 32. book debts. Here the assignment was of property which was capable of being identified. Whatever might have been the ground of the decision Patents Act of 1883, which provides that :-"Where any person claiming
A question arose in this case as to the construction of section 32 of the in that case, which was not very apparent from the judgments, it did not to be the patentee of an invention, by circular, advertisement, or otherBegg ; Byrne ; Yate Lee. SOLICITORS, Duffield f Bruty; Paterson, Snow, s in respect of any alleged manufacture, use, sale, or purchase of the inven; Co.; Storey 8. Cowland.
tion, any person or persons aggrieved thereby may bring an action against
him, and may obtain an injunction against the continuance of such ARNOTT v. HAYES-C. A. No. 2, 29th July.
threats, and may recover such damage (if any) as may have been sustained Banker's Books—Inspection—PARTY to ProceedINGS-EX PARTE ORDER threats related was shot in fact an infringement of any legal rights of the
thereby, if the alleged manufacture, use, sale, or purchase to which the -BANKERS Books EvIDENCE Act, 1879 (42 & 43 Vict. c. 11), s. 7. A question arose in this case as to the effect of section 7 of the Bankers’ the person making such threats with due diligence commences and prose
person making such threats. Provided that this section shall not apply if party to a legal proceeding, a court or judge' may order that such party was the owner of a patent, granted in 1879, for a “ tap union," and verein be at liberty to inspect and take copies of any entries in a banker's book since 1879 he had manufactured and sold the patented article, and until for the rescission of a contract to take Shares in a company, and ene patent." In March, 1887, he discovered that a number of tap unionicles plaintiff alleged that sums paid by him had, in fact, been appropriated the made by himself were being sold, and he considered that those articles Where the company also had an account. The plaintif obtained in Bader Challender, the plaintift, who had taken out a patent in 1886. Rogle,
in March, 1887, issued the following circular :-"Royle's [t having come to our knowledge that certain of our patents are
Re GIBBONS' TRUSTS-Chitty, J., 3rd August. nged-notably, Royle's Patent Tap Union and Patent Archi3g Beater-we hereby caution our numerous friends against
PRACTICE-Costs-LEGACY_PAYMENT ISTO Court. those imitation goods. It cannot be too generally known that children living at his death of nine persons named, the executors paid the
In this case, a testator having bequeathed a sum of £10,000 to the
to restrain the alleged infringement of his patent. On the Jennings v. Newman (10 Ves. 219); Boycott v. Newman (4 W. R. 707); Re
CHITTY, J., said that the view he took was that the costs must come out ent, and that Royle would proceed against them if they con
of the residue as part of the ordinary costs of administration. In his ll it. On the 15th of June Royle served the company with a
opinion the balance of authority was in favour of that view. It was the ction to restrain them from infringing his patent. The writ duity of an executor to ascertain who were the persons entitled to a legacy, at action was issued on the 11th of June, but not served till and upon principle there was no distinction between the costs of ascer. }y it the plaintiff claimed an injunction to restrain Royle from taining a question of construction and those of ascertaining the members by circulars or otherwise any person with legal proceedings of a class of legatees. It could not be said that executors, by payment n respect of the manufacture, use, sale, or purchase of the into court or any severance of a legacy, were acting so as to relieve the punion.. Bristowe, V.C., granted an interlocutory injunction. residue from bearing costs. He held that the costs were payable out of led, and it was argued on his behalf that the above circular the residue.- Counsel, Römer, Q.C., and Stokes ; Whitehorne, Q.O., and hreat” within the meaning of section 32; it was only a warning Cherter ; Chester g Co., for Kent, McKenna, s Kent, Liverpool; C. D.
Parke ; Methold. Solicitors, Bowlings, Foyer, f Hordern, for Moss & Sharp, c. Section 32 was aimed at a definite threat of legal proressed to an individual in respect of an alleged past infringe
Woolley. tent. It was not necessary that the “action for infringetioned in the proviso at the end of section 32 should be
Re POWELL BENNETT (DECEASED)--Chitty, J., 3rd August. inst the person aggrieved" mentioned in the former part of PRACTICE-Costs-ADMINISTRATION - FUND IN Court-Petition FOR PAY. it was suficient if it was brought against some other alleged
MENT BEFORE FURTHER CONSIDERATION. it raised the same question which would be raised against the rieved." if he were the defendant. The action against the judgment having been made, one of the parties interested in a fund in
This was an administration action in which, the usual administration Plumbing Co. was therefore sufficient to exclude section 32, court presented, before further consideration, a petition for division of the on had been commenced with “due diligence.”
OF APPEAL (Cotton and Bowen, L.JJ.) reversed the decision fund, proposing payment out to himself and carrying over of the shares of | the injunction. COTTON, L.J., said that Halsey v. Brother.
the other parties to separate accounts. D. 514) shewed that, but for the Patents Act, the plaintiff practice that under such circumstances the petitioner who had come be
CHITTY, J., in making an order as prayed, said that it was the settled no reasonable ground for his action. The two inventions in
fore the proper time must pay his own costs and the costs of those he had f appliance and construction were almost alike. Section 32 brought before the court-that was, must pay the costs of all parties.. He, I final judgment, and did not refer directly to interlocutory, therefore, directed that the costs of the petition be paid by the petitioner. because it spoke of recovering damages. It was doubtful CounSEL,' Whitehorne, Q.C., and Chas. Mitchell; Fooks, Q.C., and W. C. circular was a "threat” within the section, but there hai Fooks; Romer, Q C., and Grosvenor Woods. Solicitors, Mead & Daubeny ; t against the Manchester Co., and it was clear that the Radcliffes, Cator, & Martineau. 1 “person aggrieved." The court must be satisfied that the ained of was not an infringement of any legal right of the UNION BANK OF LONDON v. KENT AND OTHERS- Chitty, J., 3rd ade the threat. It was not necessary to say on whom was
August. proof; primâ facie it would be on the plaintiff, but he might sumption and shift the burden to the defendant. The ques.
MORTGAGE BUILDING AGREEMENT-LEGAL ESTATE-PRIORITY.
the contrary which Chitty, J., had intimated in Kurtz v. however, in fraud of the mortgage, mortgaged the leases which were
The case was
ONUS or PROVING TIME OF DEATH. t against him in which damages could be obtained. The In this case a question arose as to the proof of the time at which a founded on some act done; it must be honestly brought person had died who had not been heard of for seven years, and who was lidity or infringement of the patent, and following up a therefore to be presumed to be dead. R. emigrated to Australia in 1850, some person to whom it was made. Bowen, L.J., said and was last heard of by his family in 1873. In 1885 administration to must not be a mere warning, but a threat of legal pro- bis estate was granted on the assumption that he was dead. There was ability in respect of an alleged, not merely a proposed, in the hands of the administrator a sum of money, to which R. was f the patented article. Of course a general warning might entitled under the will of his father, and the administrator took out an it was important that it should be understood that it did not originating summons with the view of determining wno was entitled to ause on the simple grammatical construction of the warning the fund. Upon the hearing of the summons inquiries were directed 7 to the future, it might not be applicable to an
when R. died, and who were his next of kin living at the time of his The court was not expressing any final opinion as to the death, whether any of them had since died, and, if so, who were their le patent or as to the fact of infringement.—Counsel, personal representatives. In answer to these inquiries the chief clerk had
and .. Hall; Finlay, Q.C., and Bousfield. SOLICITORS, found that R. was last heard of in 1873. and that he was dead in 1880, en; Bolton, Robbins, Busk, & Co.
but that ihere was 10 evidence to shew that he had died at any date before