Page images

. . as held to have died in 1873, and then to have died a bgzhglbir higtngxtwof kin living at his death, assuming that he had died on any day in that year, would have been his mother and two of his brothers, all of whom had since died. If R. had died on any day between the 1st of January and the 31st of December, 1880 (b)th days inclusive), and ha_d died a bachelor, such next of kin would be the six children of one of his deceased brothers. The fund was claimed by the representatives of the 1873 next of kin, and by the 188_0_next of kin. _

Non-m, J , said that the inquines had not been answered by the chief clerk, and there was nothing which enabled the court to say that either set of claimants was entitled to the fund. The persons who would be entitled it R. had died at the beginning of the period of seven years were not the same as those who would be entitled if he had died at the end of that period, and it was clear also that there was some moment during the period at which the persons entitled would have been difierent from those who would have been entitled either at_the_beginning or the end, or, at any rate, they would have been entitled in different shares. The persons really entitled were those who were the next of kin of R. at the time of his death. It was settled by such cases as R: Phen¢'.! Trims (5 Ch. 139) and Ra Lewes’ Trusts (6 Ch. 356) that, though a man who had not been heard of for seven years was to be presumed to be dead, there was no presumption from that fact alone that he had died at one time rather than another during the seven years, and that those who made a claim founded on his having died at a particular time were bound to prove his death at that time. There was no proof of the time at which R. died, and the case must go back to the chiei clerk for further inquiry.—Ooussni., C'o:1'n-sHardy, Q.C., and Banlswell; Joseph Tanner ; B. Eyre. Souciroizs, Jaques, Layton, Q Co.

[ocr errors]

The question in this case was whether parol evidence could be admitted to explain an ambiguity in a will. The testatrix bequeathed a legacy of £500 to “ The Female Orphan As-1.” The fourth word in the above description was obscurely written in the original will, and it was doubtfu, whether it was “ As".” or “ As"\." North, J., was of opinio n aiter looking at the original will, that the abbreviated word was “As"'.," and that it was a contraction of the word “Asylum.” The legacy was claimed by two institutions, one called “ The Female Orphan Asylum," whose asylum was situate at Beddington, in Surrey ; the other, the Hampshire Female Orphan Asylum, whose asylum was situate at Southampton, in which town the testatrix had lived. She had in her lifetime subscribed to the latter institution.

Noni-ii, J ., held that there was an ambiguity, and that parol evidence was admissible, and on the evidence he held that the Hampshire Female Orphan Asylum was intended by the tsstatrix.

The chief clerk had found that the Beddingtcii Asylum was intended. This finding was in accordance with the direction of the judge, given after hearing an argument in chambers by counsel for the two asylums. A summons to vary the certificate was taken out on behalf of the Hampshire Asylu_m. North, J ., had ordered the costs of the hearing in chambers to bebpaid out of the estate of the testatrix.

_ oiirn, J., said that the parties were entitled to bring the case on before him in chambers as they done, and they were also entitled to have a second argument before him on ‘a summons to vary the certificate, so that they might be able to appeal, if they should wish to do so. But he could not ai_low_ the costs_of the second hearing out of the estate. The costs oi’ bpth institutions oi that hearing must be paid out of the legacy —C0\‘l\'SEl., lemon R. Snufli ; Uozens-Hardy, Q,.C., and 7Varrs'ngton ,' C. Browne ; Cog},-. #0", Q.-U-, and Byrne ; Rowden ,- Soutlmll. Soticiroas, Lovell, Son, 4- Pitfiehi; Crossman, Crossmon, 4- Prichard; G. Booth; F. J. Q G. J. Brui'kmridye; S. Whitehead.

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

in the administration by the High Court of the assets of any person who may die insolvent, "the same rules shall prevail and be obsrved as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt." Section 125 of the Bankruptcy Act, 1883, gives to creditors of deceased persons, whose estates are insolvent, power to obtain administration in bankruptcy, according to the law of bankruptcy, either by original petition in bankruptcy, or, in the case of existing proceedings for administration in another court, by application to that other court to transfer the proceedings into the Court of Bankruptcy. It was argued for the trustees of the savings bank that section 40 of the Bankruptcy Act did not repeal section 14 of the Savings Banks Act by implication, even for the purposes of bankruptcy administration, and that, it it did, the order or priority prescribed by section 40 was not imported by section l0 of the Judicature Act, 1875, into an administration by the High Court. and that the bank was entitled to thzpriority given by section 14 of the Savings Banks Act On behalf of the ministrator it was argued that in banlauptcy the priority of the bank was abolished by section ~10 of the Bankruptcy Act, 1883, and that, by section 10 oi the Judicature Act, section 40 of the Bankruptcy Act was introduced into the administration of the estates of deceased insolvents by the Chancery Division of the High Court, for otherwise the rights of the creditors of a deceased insolvent would depend on the mere accident whether his estate was administered in the High Court, or in the Court of Bankruptcy by virtue of section 125 of the Bankruptcy Act.

N ORTH, J ., held that section 14 of the Savings Banks Act, 1863, was not repealed in tato by section 40 of the Bankruptcy Act, but that it was rendered inoperative as regards administration in bankruptcy. Either the Legislature intended by section 40 to take away, as regarded bankruptcy, the priority given by the Savings Banks Act, or there was a mum omisxus. He could not come to the latter conclusion. And his lordship thought that he was bound by the decision of Fry, J., in Re illagyi (20 Ch. D. 545), to liold,'that the rules of administration in the Chancery Division were not altered by section 10 of the Judicature Actsoastc introduce the provisions of section 40 of the Bankruptcy Act. The argument, that it would be anomalous that a diflerent rule should apply according as an insolvent estate was administered in the Chancery Division or in the Court of Bankruptcy under section 125 of the Bankruptcy Act, was answered by the fact that that section gave power to any creditor to apply to have the administration transferred to the Court of Bankruptcy. He was of opinion that in an administration in the Chancery Division the bank were entitled to priority.—~Coimsiii., Upjohn; Vernon R. Bmitli. s0LlCl'l‘|lR.\, Bell, Bradrick, Q Gray ,' Smiles, Bing/on, 4 Ollard.

[ocr errors][ocr errors]

A testator, who carried on business without any partner, made the following bequest :—“ My oflice and warehouse amployés, such as clerks and workmen, shall have to receive six months‘ full salaries." He made two codicils to his will, neither of which contained any reference tot-he above gift Both the codioils were attested by a clerk who was in the testat/or =1 employment at the date of his will and up to the time of his death. The question was what employ/éa of the testator were entitled to the benefit of the above gift. Three constructions were suggested-—(l) Those who were in the employment of the testator at the data of his will; (2) those who were in his employment at the date of his death; (3) those who were in his employment at the date of the will and who so continued upto the time of his death. Another question was whether "full" salaries mewi that the legacies were to be paid free of legacy duty. There was II further question: whether the clerk who had attested both the codwii! was disqualified by section 15 of the Wills Act from receiving 15116168513’ to which he would otherwise have been entitled under the above gift?

Noivrri, J ., held that the persons entitled were those miployés w o were in the testator's service at the date of his death. Ii’ the testator had {I1tended those persons who were in his employment at the date of his will, nothing would have been easier than to mention them by name. There might be persons in the testator’s employment at the date of his will whose salaries might, by reason of their continuance in his service, haw Pee" increased before the time of his death, and the salariu of others mlilh“ have been reduced by reason of their incompetence or misconduct, or If the testator's business was not so flourishing, he might have been compelledto reduce the salaries of his clerks all round. It seemed absurd W suppose that, in the case of a man who was in receipt of a higher sail"! at the date oi’ the testator’s death, the amount of his 16310! 5h°“1d in measured, not by the salary which he was then receivin , but 5.7 ‘hf salary which he had received at an antecedent time. His lorgshtig thouflb“ that by “ full salaries " the testator meant the full salaries at e time of his death, and this threw light on the question who were the persons entitled to take. A man who was not in the testatoi-’s employment st the time of his death would not be receiving any salary at all, and there Wollid be no standard by which the amount of his legacy could be mwY°dMoreover, as the testator had no partner, the persons in his employment 1111811? bfi left Without any employment by reason of his death, "fa It W“? probable that he intended to rovide them compensation for their loss 0 °mP1°Ylnel1t- The only decided cases bearing on the point were -/("W 'Hmlql (2 Ch ReP- 162) and Parker v. llarrhant (1 Y. & C. (Oh-l 29,0)‘ but in both of them the words differed from those of the present W1]-ii


and it seemed that some words must have been omitted from the f¢P°'t °


Aug- 6. 1887- THE SOLICITORS’ JOURNAL. 619


Jones v. Henley. His lordship thought that the expression “ full salaries " did not exempt the legatees from paying legacy duty. It meant that the salaries were to be calculated without any incidental deductions by reason of either the custom of trade or the illness of the legatee, but it was not intended to relieve tho legatees from the payment of any charge, such as legacy dutg, which the law cast on them. On the authority of Gurney v. Gamay (3 rew. 208) his lordship held that, as the clerk had only attested the codicils, which had no reference to the legacies, he was not disqualified.—Covs'ssL, Fariooll ,- B. S. Ford ; Bariiswrll. Soi.ici'i-one Prilcliard, Englcfield, Q’ Co. '

[ocr errors]
[ocr errors]

This case raised a question as to the construction of section 5 of the Conveyancing Act of 1882, which provides that “ on an appointment of new trustees a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property." An originating summons was taken out by the trustees of a will, as plaintiffs, against the tenants for life of a legacy of £50,000, bequeathed by the will on certain trusts distinct from the general trusts declared by the will, as defendants, asking the court to determine whether the plaintiffs were authorized to retire or be discharged from th_e trusts of the will so far as the same related to tho £50,000, and to_ appoint a separate set of trustees of that legacy, or of the trusts of the will relating thereto, the plaintiffs themselves remaining trustees of the rest of the property sub) e_ct to the trusts of the will.

Noimi, J .,_ was of opinion that such an appointment was not within the scope of section That section contemplated the retirement of all or some oi an existing set of trustees, and that there might be a difliculty in getting new trustees to act in the entire trust, and that it might be cxpedient to divide the trusts in order to get rid of that difilculty. But it did not contemplate the creation for the first time of a distinct trust as to part of the property when the old trustees were not retiring from the trusts as to the rest of the property. The words pointed to the power being used when new trustees were being appointed —s‘.¢., when the old trustees, or some of them, were ceasing to be trustees altogether. The plsintiils d_esire_d to read the section as it it had said that, on every occasion when it might be thought desirable to do so, a separate set of trustees might be appointed for any part of the trust property held on distinct trusts. Bu_t that was not what the section said. It would be easy to conCHVQ cases m which it might be desirable to make such an appointment, but such cases were not likely to occur frequently, and his lordship did iiot_think that they were in the contemplation of the framers of the fl6<!tlo1i.—Coimsiii., Ingle Joyce; R. 6'. Doblaa. SOLICITORR, J’. E. For Q 00. ,Jlurray, H1410/iiris, Q Slir/i'n_1;.

[ocr errors]
[ocr errors]

_ This was an action bya purchaser for the return of his deposit, with interest and costs. The purchaser had given notice to rescind his contract, on the ground that the vendor had tailed to shew a good title to the P'°P°1"»Y- The property sold was a freehold ground-rent secure-l by a lease dated the 28th of January, 1876, fora term of ninety-nine years, and it formed one lot (No. 136) among others of a similar nature. The "“d°!"11.B8tenant for lite, selling under the provisions of the Settled Land Act. One of the conditions of sale was, “ All purchasers will buy ffilbleci £0, and admit the validity of, the leases stated in the particulars.” 18 6! day fixed for the completion of the purchases was the 13th of April, h3o- From the abstract of title delivered to the purchaser, it appeared Bet Lot 136 had been the subject of a lease for lives dated the 18th of b member, 1850. The abstract contained a note stating that this lease had een surrendered, and the lease of 1876 thereupon granted, but no surrender was abstracted. It appeared also that the lease of 1876 had been $9-"led by the vendor's father, who was then the tenant for lite under esettlement pt the property, under a leasing power contained in the settlement, which authorized the granting of leases made to take efiect 1: P°BB€iB10li. The purchaser required the vendor to produce evidence at the lease of 1850 was surrendered when the lease of 1876 was gmnledi The vendor's solicitors made inquiries, though they inBlsfed that the conditions precluded the purchaser from requiring Evidence of the surrender. In the course of the inquiries it appeared {'19 the lease of 1850 had been granted for three lives, and that one 0 those lives was still in existence, but that when the lease of 1876 W" Kfflllied possession of the property was at once given to the lessee, aid that he had been in possession under it ever since, no claim having bein since made under the lease of 1850. A long correspondence took place V weep the respective solicitors, and various inquiries were made, but the Benders solicitors did not succeed in satisfying the purchaser of the vptrender. At last, on the 21st of October, 1885, the vendor's solicitors col0te to the purchaser's solicitors, “ We must now call upon you either to iumplete, orto state whether you desire to have any and what further atquu-ies made, or information procured. Furtherinquiries must be made wmigur "Dense-" On the 9th of November the purchaser’s solicitors mum to the vendor's solicitors that, as the surrender of the lease of 1850 mu _ 11ot_he shewn or procured, and it was clear that one of the lives was re ;“ ‘instance. the purchaser declined to complete his purchase, and thq\12:‘)ed the vendor to return his deposit, with interest and costs. On Oneb hth of December, 1885, this action was commenced. It was argued ha e alf of the vendor that, inasmuch as the lease of 1876 would not '6 been valid under the power if it had not been granted to take effect

[ocr errors]

in possession, and it could _uot have been so granted if the prior lease of l§o0 was then still subsisting, the purchaser, being hound by the condition to admit the validity of the lease of 1876, was, therefore, bound to adpiit that the prior lease of 1850 had come to an end when the lease of l8i6_ was granted. It was also contended that the purchaser's notion of rescission was not a reasonable one, and that, at any rate, he ought to have proceeded by summons under the Vendor and Purchaser Act, and not by in action, and that only the costs ot a summons ought to be allowed to im.

N ouru, J ., held that the purchaser was entitled to rescind his contract, and ordered the vendor to return the deposit, with interest from the date of the notice of rescission, and his proper costs and expenses in relation to the contract and the investigation of the title. He said that the condition must be construed fairly. The vendor was seeking to deprive the purchaser of that to which he would otherwise be entitled. It was not suggested that the condition was traudulent, tricky, or catching. It bound the purchaser to admit the validity of the lease of 1876, but not to admit every matter which might be a condition precedent to the validity of the lease . It did not bind him not to take the objection that the immediate reversion was outstanding. The sale was a sale of the reversion, and a title to the reversion had to be shewn. It was necessary that the prior lease which was she wn to be outstanding should be got rid of iii some way. The condition did not bind the purchaser to admit that the vendor was in possession of the property at the time when the lease of 187 6 was granted. That lease purported to be a lease in possession, and no doubt it was, in the belief of hoth lessor and lessee, that which it purported to he. Its validity would not be affected by the subsistence of an unexpired lease under which no claim was being made, especially as possession was at once delivered to the lessee. The condition did not preclude the purchaser from taking the objection. Then arose the question whether the purchaser was justified in giving the notice oi rescission on the 9th ot N ovcmber. The vendor had given the purchaser the choice of two things —completion of the purchase, or further inquiries to be made at his expense. The onus was not on the purchaser to shew that the lease of 1850 had not come to an end, it was on the vendor to get rid of that which appeared to be an existing incumbrance on the property. And, even if the onus was on the purchaser, he had done all which could be required of him. At the time when the notice of rescission was given a good title had not been shewn by the vendor, and, after the long correspondence which had taken place, the purchaser was entitled to give the notice, provided that he allowed the vendor a reasonable time within which to procure the required information. But the vendor had already said that he would do nothing more except at the purchaser’s expense. Consequently, according to Not! v. Riccard (22 Beav. 307), the purchaser was juatified in giying a peremptory notice of rescission. As to the question of costs, the object of the Vendor and Purchaser Act was to enable questions between vendors and purchasers to be decided expeditiously and cheaply, and, if the purchaser had deliberately adopted the more expensive mode of procedure, his lordship would not allow him the additional costs arising from his so doing. But there was nothing vexatious in what he had done. And at that time there was some doubt whether interest on the deposit could be obtained by a summons under the Vendor and Purchaser Act. Re Haryrcaves /imi T/l0mp.r0!i's Contract (32 Oh. D. 454, 30 Soi.icirous' JOURNAL, 516), in which the Court of Appeal held that this could be done by summons, had not been decided at the time when the present action was commenced. 'l‘h_ere was no ground, therefore, for depriving the purchaser oi any part of his costs.—Coi'i~:sizr, Cazens-Hardy, Q 0., and E. 0/silty ,' Cookson, Q.C., and Randall. Soi.iciroiis, Kinysford, Dorm/m, Q 00. ; Deaborouyh Q Son.

[ocr errors]

In this action a point arose as to what fund should bear the costs of the suit which had been brought by a residuary lcgatee for the purpose of establishing his own identity. By the will of l’ashley the trustees were directed to divide the estate, after converting it into money, amongst the test-ator’s five children, naming them, one being “Joseph Allen Paahley.” J. A. Paahley had gone to Australia some_twenty years ago, and had been lost sight oi‘, having written to_liis relatives once or twice during the interval. The plaintiff clainied his share from the trustees, but they declined to pay him, and this suit was brought. By their defence the trustees alleged that no communication had ever been received from the plaintiff; that proper advertisements had been issued for him, and they claimed the benefit of all statutes of limitation or_rules of law if the identity were established. This was the trial of an issue directcd as to whether the plaintiif was, in fact, the Joseph Allen Pashley mentioned in the will. .

Kxiuiivicii, J ., said (after hearing evidence) that he was satisfied of the identity of the plaintiff. There would be a general accouH_t,_ find file costs of the action would come out of the estate before division into shares. There had been no severance of the plaintiffs, and, moreover, the resistance to payment was made for the safety _of the trustees _and benefit of the other residuary legatees. The plaintilf was quite Gllbtltifid to go to the colonies if he liked, and he had not wilfully keptlofut 3 Ii 3 way, so was entitled to have the costs taken out of the genera Sui, ant not out of his share of the residue.—Courissi., 1l{urph_i/, Q-G-, in '"-'9 Lock; Wm-mington, Q.C., and 1)ramweIlDuiris. hloniciroiis, W. B. 5'11/*1‘ 1 H. A. 11101-se. .

HARVEY v. OLLIVER—Kay, J ., 19th July. The followin is a more detailed statement of the facts of this case,


1 which was shorfiy reported ante, p. 644.



The last surviving trustee died on the 24th of January, 1883, and the new trustees were appointed on the 3rd of March, 1883. The writ in the action was issued on the 20th of January, 1883, and, by an_ order of the Appeal Court of the 26th of June, 1885, the trustees were given their costs of the action as between solicitor and client up to and including the appeal. The order under which the present question arose was made on further consideration on the 28th of June, 1886 (not on the 27th of March, 1885, as previously stated), and it was thereby “ ordered that it be referred to the taxing master to tax the costs of the plaintiffs and defendants . . . from the foot of the last taxation directed by the said order of the

26th of Jime, 1885 . . . and including in the costs of the defendants" (the new trustees) . . . “any costs, charges, and exsenses properly incurred by them as trustees of the will of the said John lliver

beyond their costs of this action." The new trustees duly carried in their bills of costs, and the taxing master disallowed various charges therein.

Those referred to in the re ort as first, were items in the bill of costs of the solicitor for the original) trustees and for the donee of the power of appointment for preparing transfers of four mortgages and counsel’s fees thereon, searching for old deeds, counsel’s fee for re-settling draft transfer, fair copies of transfers, letter to new trustees as to a difiiculty in one of the mortgages, engrossing transfers, attending solicitor of the executor of the last surviving original trustee who required alteration in one of the transfers, altering the transfer, counsel’s fee, and stamping transfers. The first of these items was dated the 3rd of April, 1883. This bill had been paid by the new trustees in order to obtain the transfr-rs; and they had also paid the bill of the solicitor for the executor of the last surviving original trustee, which consisted of charges for going through accounts, perusing the appointment and transfers, and attending at the execution thereof ; but this bill, the first item in which was in April, 1883, was not disallowed.

The charges referred to as “ secondly " consisted of items in the bill of the solicitor to the new trustees who had been retained by them on the 19th of January, 1883, with a view to the action. The taxing master disallowed all the items in this bill prior to the 3rd of March, 1883. They included attending on the new trustees to get instructions, perusing the will, checking the_ accounts, considering and advising on letters from the donee and hersohcitors. perusing and considering draft appointment, fair copy, and advising on the same, and attendances on the new_ trustees.

Those referred to in the report as “ thirdly " were items in the same bill as those first mentioned. They included letters to the donee as to the appointment of new trustees, to others asking them to be trustees, perusing the will and accounts with a view to preparing the appointment, interviews with proposed new trustees, drawing appointment of new trustees, counsels’ fe_es,_ examining into a question of a power of sale and an erroneous distribution of the trust estate and loo izig for documentary evidence on the point, counsel’s opinion thereon, attendance on the solicitor of the executor of the last surviving original trustee, going through lists of securities. The above items were all between the dates October 1-3, 1882, and March 3, 1883, the date of the appointment.

The taxing master’_s reasons for disallowing the objections of the defeiidants to the taxation were as follows :—

I have considered the obj eotions of the defendants J ohn Olliver Vallanco and Walter Sydney Livesay to my t~ixatirm_ The Qfdel‘ directs the taxation of the costs of the obj ectants and not the costs of the retiring trustees. I have. not gone into the reason of their retirement or whether they passed their accounts, not_ being directed by the order to do so. The usual practice is for the retiring trustees to render their solicitor’s costs and t eir accounts to their beneficiaries, and then transfer the trust estate to the new trustees. For the above reasons I disallow the objections 1, 3, 4, and_5."

The second objection was allowed, and the sixth was immaterial to this report. It must be borne in mind that Kay, J ., decided the question of principle only; that his lordship refused to discuss the items, and that they "° "111 Wblect to the taxing rnaster’s discretion.

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

the pockets of the solicitor in addition to the costs he is entitled to as against the company._ Nothing ought to be done certainly to countenance or assist such proceedings. The client sends to his solicitors for their biil, and they send for him and hand him these bills—that is, they hand them to him as their bills, and they were their bills. The master erroneously declined to tax them as not being signed ; but that was not a good ground for declining to tax them. The judge seems to have been induced to believe that the bills were not deliver as bills of costs, and that the solicitors might deliver another. But in that case the master would not see the other bill off which the £100 had been taxed. The object, no doubt, of the solicitors was that if their claim was disputed they might deliver another. LINDLEY and Loi-as. L.JJ., concurred.—Cov:ussi., R. J. .Prh'lm',' Olzambers and C’. H. L1'mion.-Timer.

[ocr errors]
[ocr errors]

The question in this case was whether the Court of Bankruptcy had power, in a liquidation under the Bankruptcy Act, 1869, to restrain the creditors from holding a meeting for the purpose of removing the trustee. Sub-section 4 of section 83 of the Bankruptcy Act, 1869, provided that “ the court may, upon cause shewn, remove any trustee. The creditors may, by special resolution at a meeting specially called for that purpose, of which seven days’ notice has been given, remove the trustee and appoint another person to fill his office." (Sub-section 1 of section 86 of the Bankruptcy Act, 1883, is expressed in almost identical terms.) Section 65 of the Act of 1869 conferred on the London Court of Bankruptcy “all the powers, jurisdiction, and privileges possessed by any judge of her Majesty's Superior Courts of Common Law at Westminster, or by any judge of her Majesty's High Court of Chancery," and section T2 enabled the Court of Bankruptcy to decide all questions “ which the court may deem it expedient or necessary to decide for the purpose of doing complete justice." (Under the Bankruptcy Act, 1883, the Court of Bankruptcy is a branch of the High Court) In the present case the debts proved in the liquidation amounted to £11,625, including a proof by a Mr. Norton for £8,498. The trustee had given notice of a motion to expunge Norton's proof. A meeting of creditors was called by certain creditors who had bought up Norton's debt, for the purpose of considering the removal of the trustee and appointing another person in his place. A day was already fixed for the hearing of the motion to expunge, and the registrar, on the application of the trustee, made an order restraining the creditors from holding the mceiing, until after the motion to expunge the proof should have been heard. The creditors appealed, and it was urged that, as by section 83 (4) absolute power was given to the creditors to iiemove the trustee, the court had no jurisdiction to restrain them from

oing so.

THE Conn": or Arrsai. (Lord ESHER, hI.R., and LINDLEY and LOP_B8, L.JJ.) aflirmed. the decision. Lord ESHER, M.R., said that the question was whether that was jurisdiction to restrain the holding of the meeting, not absolutely, but until the question of the validity of a debt, which W5! already subju/iicra, had been determined. In his lordship’s opinion sections 65 and 72, or one of them, gave the jurisdiction. And, under Q16 circumstances of the case, the registrar had rightly exercised the jurisdiction. The interest of the creditors who had bought up Norton’sdebts W9-5 that it should not be investigated, and the registrar was justified in suspecting that the object of the meeting was to get a trustee appointed who would readily admit Norton's claim. Norton's debt formed so large a psli of the whole debts that the creditors who were entitled to vote in respefli of that debt would bc able, if they wished, to carry the resolution removing the trustee. It was perfectly right, therefore, that the queiiwll whether there was any such debt should be first decided. Lisotar and Loi-izs, L.JJ., 0011Cl1l'l'8d.—COUN5EL, Cr/ops!‘ Willis, o,.c., and R. Hwahfl" Williams; Ewritl, Q.O., and Henry Ifisch. Soucrrons, Ellis, il[l¢r1d¢.'/r 4' Bartrum ,- Be!/fus Q Bey/fur.

[ocr errors][ocr errors]

This was an appeal by a debtor from a receiving order which had beflll made against him on the petition of a solicitor, who had recovered jlldgmwi against him in an action in the Queen's Bench Division for the taxed amount of a bill of costs. The judgment had been obtained under R. S. 0.; 1833' ord. 14. The debtor had filed an affldavit in opposition to the plaintiiffl summons for summary judgment, in which he stated that he was entitled to a surcharge against the solicitor exceeding the amount of the toned costs, and that he desired to enforce this surcharge by a counte1'-<§lfi1!11H6 did 11°15. however, appeal from the order of the master to enter 11143‘ ment for the plaintiff. The debtor had also raised the question of sur°h"8° b°50Ic the taxing master, but had not supported it by any 9'ide'?°F' He relied then mainly on a defence that he had never retained the solicitor, and that point was decided against him by the taxing master, and afterwards by North, J., upon an application to review the tatinfl mum,‘ certificate. The debtor asked the registrar to go behind the jilggmeniv and P'°P°59d- 5° Prove the alleged surcharge. Evidence was d“°°d before the registrar as to what had taken place before the 1‘-11111118 m'“"er and before the master of the Q,l1€fi11'E Ben ch Division and the regiflll"-T then held that no case had been made out for going behind the judgment

[ocr errors][ocr errors]

Aug. 6, 1887. THE SOLICITORS’ JOURNAL. 691


and refused to allow the debtor to adduce evidence as to the surcharge. On behalf of the appellant reliance was placed on Er parts Lmrm: (16 Q. B. D. 815, 30 Soniciroas’ Jovnxsn, 46) which, it was argued, showed that, on an application for a receiving order founded on a judgment debt, the Court of Bankruptcy would go behind the judgment, and would, if the debtor alleged that there was no valid judgment debt and tendered evidence to shew that that was so, inquire into the validity of the debt.

THE Covnr or Ai>i=iiai. (Lord ESIIER, llI.R., and LINDLBY and Lorizs, LJJ.) aiflrmed the decision. Lord ESHBR, M.R., said that Er parle Leimor only shewed that the mere existence of a judgment against the debtor did not prevent the Court of Bankruptcy from going behind the judgment, if it saw sufllcient reason for doing so, but it did not decide that, on the mere suggestion of the debtor that the judgment debt was invalid, the Court of Bankruptcy was bound to go behind the judgment and inquire into the validity of the debt. A judgment debt was of itself sufficient to found a bankruptcy upon. If a suggestion was made, and some plausible evidence was offered, that the judgment debt did not really rxist, it might be right to go behind the judgment. But, if there were circumstances which shewed almost to a certainty that the suggestion of ihe invalidity of the debt was idle and frivolous, it was impossible to say that the Court of Bankruptcy was bound to enter into a lengthy and expensive inquiry. In the present case nothing had been offered to the registrar which the debtor had not had ample opportunity of going into on previous occasions, if he had chosen to do so, and the registrar was quite right in refusing to go behind the judgment. LINDLBY, L.J., coucurred. Lorrie, L.J., said that 15.1: parts Lcnnw: was not a decision that a suggestion made by the debtor, which the surrounding circumstances showed to be unreal and uusubstantial, was a reason for going behind n judgmsnt.— COUNSEL, R. Vaughan Williams,' Cock, 62.0., and Henry limb. SOLICITORS, D. E. 0/landler; Lewis 4- Lewis.

[ocr errors]

BaNKaurrcY—Pa0or—Moriox BY B.-\NKRUl'T 1'0 EXl'L'.\'GE—LOCl.'S STAND!

;Pi<ov.uii.i; DE1$T—3.\NKIlUPTCY A01", 1883, s. 37, Sciiimuin II., R.


This was a motion on behalf of the bankrupt to expunge a proof on the ground that there was no liability at the date of the receiving order which wassubject of proof. On December 18, 1886, a receiving order was made against the debtor. On December 20, 1886, verdict and judgment for the defendants was given in an action previously brought by the debtor, and on February 6, 1887, a proof for the costs in that action was tendered by the defendants against the estate. The trustee admitted the proof and by reason of the vote given by the defendants at a meeting held on May 22, 1887, a proposal of the debtor for a scheme of arrangement was rejected and he was made bankrupt. Thc bankrupt now moved to expunge the proof and for a declaration that the vote given at the said meeting was invalid. On behalf of the creditors it was argued thata bankrupt had no lot-us slandi to make the application under rule 25 of the 2nd schedule to the Bankruptcy Act, 1883, which provides that “ The cour_t may also expunge or reduce a proof upon the application of a creditor if the trustee declines to interfere in the matter, or, in the case of a composition or scheme, upon the application of the debtor." It was further urged that the action had been commenced in 1884, and that the debtor, by bringing an action, had placed himself under an obligation to pay any costs.

U-W8, J., allowed the application. His lordship said that the objection $9 the locus stands‘ of the bankrupt was the most important objection. Rule 25 of the 2nd schedule allowed the court to expunge a proof upon the application of a creditor if the trustee declined to interfere, or, in the case of a composition or scheme, upon the application of the debtor. It _Wflfl said that in this case there was not a composition or scheme because It was voted against. But then that was by reason of the weight of this Yer)‘ Wt/e, and if the debtor could not interfere he was left without remedy Inamatter in which he was greatly interested. It would be very hard that, because the chairman allowed a vote which, it might be, ought not to be 'l110Wed, and because the trustee or any creditor would not take the trouble interfere, that the debtor should be made a bankrupt. His lvrdship_did not think he would be going beyond what was intended by the Act if he held that rule 25 did in such a case give the debtor a locus ““"dt° “PPIY 150 expunge. Then, as to the question whether this debt was a provable debt in the bankruptcy, section 37 of the Act defined prov“bli d°bt5» and it was diflilcult to see what obligation there was before the date of thereceiving order. There was litigation initiated by the plaintiff but that did not necessarily create an obligation. It could not be said that because amun brought an action he placed himself or was placed under an obligation to pay the costs of the action. The obligation was "IIPOMI when judgment was given against him. It would be carrying the court too far to say that in this case there was an obligation before the “°e1""B 0rder.—Coimsi2i., Abra/isms ; Sidiiay Woolf; Broxhnlzm. Soi.iciWRS. -ll. Abraham, Son, 4- Co; Jolmsim, Harris 6' Dowding.

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

was a fraudulent preference under section 48 of the Bankruptcy Act, 1883, further called upon the respondent to “ take notice that in support of the aid motion an affidavit of the said trustee and a transcript of a portion of the shorthand writer's notes of the public examination now on the file of proceedings in the said bankruptcy will be read and used." The county court judge was of opinion that, except by consent, the notes in question were inadmissible, but submitted the case to the High Court. On behalf of the trustee it was urged that it was only sought to use the sworn answers of the bankrupt in the same way as an affidavit, and that it was open to the respondent to have given notice that he would require the bankrupt to attend for cross-examination like any other deponent; that the public examination of the bankrupt stood on a different footing from a private examination under section 27 inasmuch as every creditor could appear and cross-examine him thereon; and, further, that even though the answers of the bankrupt in his public examination might not be admissible in every motion, still they were admissible in is motion of this kind, where the only questfion was as to the motive and intent of the bankrupt in making this trans er.

Cave. J ., held that the examination could not be received in evidence. His lordship said that no authority could be cited for the proposition that the evidence of a witness taken in one proceeding was evidence in some other proceeding against a person who was not a party to the former proceeding. It would be in the highest degree unfair that a statement of the bankrupt on his public examination should be evidence against every creditor who had anything to do with the bankruptcy, and even against persons who had nothing to do with it. The convenience would certainly be on the side of the trustee, whom it would place in a very enviable position, but his lordship, sittingas a judge, must not look at the convenience of the trustee, but at the convenience of all parties and the interests of justice, and it would be a grave injustice to say that such evidence was admissible. There might be atendency on the part of a trustee to rely on expressions of the debtor at a time when he was endeavouring to make his conduct appear at the best, and was therefore unreliable. Unless some special enactment in the Act of Parliment or some definite decision of a competent court could be pointed out, evidence of this kind ought not to be received. It would be another matter if the parties consented, but in the absence of any authority, or of consent, his lordship was certainly disinclined to make a precedent._— COUNSEL, Sir Edward Clarke, S.G., Muir ilfackmzic. SOLICITORS, The Solicifor to ills Board of Trade.

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

On the 27th ult. the draft Bill of Lading framed by the llSBOClfll1011 was discussed. _ .

The CHAIRMAN (Dr. Seiveking), president of the_ Hanseatio High Court of Appeal of Hamburg, opened the debate by intimating that he should limit, at all events, the first part of the discussion to the consideration of the negligence clause.

Mr. GRAY Hiu. (Liverpool) in a speech which _was much applauded, proposed as a resolution: “ That the following principle adopt , by the conference of the association held at Liverpool in 1882, be now confirmed and adopted as the basis of discussion, _and that the principle of the common form of bill of lading should be this, that the shipowner, whether by steam or sailing ship, should be liable for the faults of his servants in all matters relating to the ordinary course of the voyage, such_as_the stowage and right delivery of the cargo and other matters of_ th_1s_k111d| but on the other hand the shipowner should be exempt from liablllfiy fill,‘ everything which comes under the heads of accidents of navigation, even though the loss from these may be indirectly attributable to some fault or neglect of the crew.” _

Mr. JOHN Gi.ovizn (London) seconded the resolution.

M. Ci.vsi-ir (Paris) moved an amendment to the effect that, so far as ths negligence of the crew was concerned, the shipowner should onlyybe lire; from responsibility for “ the acts of gross fault and recklessness o _ is servants. After much discussion, M. Clunet’s amendment not being seconded, the chairman put Mr. Gray Hill's resolution to the meeting, and it was carried unanimously.

Sir TRAYBR5 Twiss then took the chair.

[ocr errors]

Gabba of Pisa. _ .
M Caesar proposed :—“ That the association expresses the W151! that 111


consider conventions between different nations a clause should be inserted

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

permitting consuls to celebrate marriages between men of their own nation and women of the country.”

M. LAC]-{AU seconded the resolution.

A discussion ensued, and ultimately Prof. Liions Lnvi moved, and Dr. D. ORBLL1 GORBAOXONI seconded, the following motion, which, after further discussion, was, upon the motion of Dr. Wnnnr, referred for further consideration to the executive council :

“ That this conference recommends that no marriage shall be celebrated between a native and a foreigner unless a duly-authorized certificate be made to the effect that there is no legal impediment to such a marriage in the country to which such foreigner belongs. That the certificate so produced shall be conclusive as to the capacity of such a foreigner to marry." _

Fxscurrorz or Foaizion JUDGMBNTS.

On the 28th ult. a paper on this subject was read by Mr. F. J . Toiniixs (Lincoln's-inn).

Upon the motion of M. Cruuar (Paris), seconded by Dr. Piisnoi-ii. (Hamburg). it was resolved, with three dissentients, “ That the association expresses the desire that the question of the execution of foreign judgments should be made the object of special conventions between the different States, and that these special conventions should be based on the principles voted by the association in its meeting at Milan in 1883."


on the 31Bt11lt-. Mr. CARMICHABL (London), as secretary of the International Copyright Commit-tee, read the report of that committee, of which Sir Travers Twiss was chairman. The report commenced with areference to the Hawley Bill and the Chace Bill, both now before the United States’ Congress. and cited Mr. J . W. Harper-'s opinion, as that of a member of an itmerican firm honourably distinguished by their advocacy of international copyright, in favour of the Hawley Bill as the “ clearer, easier, and more direct," and conforming to the American Copyright Statute. The report then shewed that the subject of international copyright was one which concerned our colonies in North America as well as our home interests, and cited the text of a question lately put by Mr. Edgar in the Dominion Parliament and the reply of the Dominion Minister of Justice to the effect that this important subject was engaging the attention of the Dominion Government.

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

Sir STEPHEN WALC01T,K-C.M.G., died at his residence. Grange-park, Ealing, on the 25th ult., in his eighty-first year. Sir S. Walcott was the eldest son of Mr. Robert John Walcott, and was born in 1806. He was called to the bar at Lincoln's-inn in Hilary Term, 1828, and he practised for a few years m the Court of Chancery. He became an assistant poor law commissioner in 1832, and from 1835 till 1838 he was chief secretary to the Governor-General of Canada. He was secretary to the Emigration Commission from 1840 till 18_60, when he became an emigration commissioner, and he had been Chief Colonial Land and Emigration Commis;lO_l18I since 1877. He _was _created a Companion of the Order of St.

gichael and St. George in 18i2, and a Knight Commander of the same 0 er in 1877. _Sir B. Walcott was married in 1838 to the only daughter of Mr. John Davidson, of Quebec.

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

Ham. Mr. Casserley is the eldest son of Mr. Samuel Casserley, and was born in 1841. He is an LL.B. of the University of London, and he was called to the bar at the Middle Temple in Michaelmas Term, 1873. Mr. Casserley has been for some time junior prosecuting counsel to the Putt Oflflce on the Midland Circuit.

Mr. HENRY Ciiliarss Riciiaims, barrister, has been appointed Jllblwl‘ Prosecuting Counsel to the Post Office at the Central Criminal Court, in succession to Mr. Charles Frederick Gill, who has succeeded Mr. Ernest Baggallay as senior counsel. Mr. Richards is the second son of Mr. Frederick Richards, of Hastings, and was born in 1851. He was called to the bar at Gray’s-inn in May, 1881. Mr. Richards has been for some time junior prosecuting counsel to the Post Oifice on the South-Eastern Circuit.

Mr. THOMAS HEATH, solicitor, of Devonport, has been appointed a Commissioner to administer Oaths iii the Supreme Court of Judicature.

Mr. MUNTBR Macnosahn BBCKINGSALE, solicitor, of R do, Newport, and East Cowes, has been appointed a Commissioner to administer Oaths in the Supreme Court of Judicature.

Mr. Fnsoiiarcx SHARPLBY, solicitor, of Louth, has been elected Coroner for the Louth District of Lincolnshire. Mr. Sharpley had for many years acted as deputy coroner. He was admitted a solicitor in 1850.

Mr. J arias Hiioim Donor./iss, solicitor, of Market Harborough, has been appointed Clerk to the Market Harborough Highway Board, in succession to the late Mr. William Thomas Sheild. Mr. Douglass was admitted ii solicitor in 1856.

Mr. JAMES Liir Dovcmss, solicitor, of Uppingham, has been appointrd Clerk to the County Magistrates at that place, in succession to the late Mr. William Thomas Sheild. Mr. Douglass was admitted a solicitor in 1886.

Messrs. Duaors, Rain, & WILLIAMS, of 3, Pancras-lane, have been appointed Solicitors to the Parish Clerks’ Company.

Mr. Roiisar WILLIAM Paar-ran, solicitor (of the firm of Heath, Parker, 8: Brett), of 3, New London-street, and of Tottenham, has been elected Vistry Clerk of the parish of St. Olave, Hart-street, in succession to the late Mr. William Heath. Mr. Parker is solicitor to the Tottenham Local Board. He was admitted a solicitor in 1866.

Mr. THOMAS Barman, solicitor (of the firm of Haigh, Barker, 8: Barker-‘. of Dewsbury and Horbury, has been appointed Clerk to the Horbury Local Board. Mr. Parker was admitted a solicitor in 1870.

Mr. WILLIAM BURTONSHAW, solicitor, of Doncaster and Ci-owls, has been appointed Clerk to the Crowle Local Board. Mr. Burtonshsw was admit a solicitor in 1884.

Mr. Ansaao WHALBY Cour, Q.C., has been appointed to act as Pursue Judge of the High Court of Justice of Griqualand West. Mr. Cole is the fourth sou of Mr. William Nicholas Cole. He was called tothe bar at the Middle Temple in Hilary Term, 1850, and he is a Queen's Counsel for the Cape Colony.

Mr. Onnirimr ELPHXNBTONI Lnorn, barrister-at-law, h_as been appointed a Revising Barrister on the North Wales and Chester Circuit, in the place of Mr. W. Laugford Ffoulkes, who has resigned his appointment.

Mr. Gsonoii Woarnrsoron, barrister, has been appointed Judge 0! Insolvency for the Colony ot Victoria. Mr. Worthingtonis the 8060114 son of Mr. George Worthington, of Liverpool, and was born in 1825. He was called to the bar at Lincolu’s-inn in Hilary Term, 1861.


GEORGE THAVBLL Taavanr. and PARKER WOODWARD, solicitors (Travell & Woodward), of Victoria-buildings, Nottingham. July 29. [Gn:et2e, August 2-]


The judicial members of the House of Lords will rise for the vacation at the end of the present week.

In the course of a debate on High Sherifis, in the House of I-Md! L°'d Bramwell said that, though he was in a minority among his brethren. he did not think the dignity of her Majesty’s judges was augmented W ‘ha attendance of the high sheriff at the assizes.

On Tuesday five actions were in the paper for trial before Mr. Jukilw Hawkins with common juries. On taking his seat, however, his lordship, addressing the leaders of the bar, said he was sorry to find that, tlwughh“ list of causes had been drawn up for him to try in London. F" ',,° pressure of busiuc ss compelled him to leave at once for Chelmsford. 1%: had come up only yesterday from Derby, and thought he had had elwllfld of circuit; but this morning Mr. Justice Grove's marshal had 00111611,", requested his presence at Chelmsford. His lordship was venf 80")’,t he had no alternative. If there was any case which he could dispose of a once he would take it.

On Saturday a case at the Warwick Assizes disclosed a somewhat curw]-19 oflicial dilemma. The prisoners (two women) were committed by the ml-1815' trates at Rugby to take their trial at these assizes. Each woman had is bib)’ about a year old both being at the breast. The police took the pTl5°!191'9


,and the children on the 18th of July to Warwick Gaol, when the

[ocr errors]
[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
« PreviousContinue »