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that year. If R. was held to have died in 1873, and then to have died a in the administration by the High Court of the assets of any person who bachelor, his next of kin living at his death, assuming that he had died may die insolvent, "the same rules shall prevail and be observed as to the on any day in that year, would have been his mother and two of his brothers, respective rights of secured and unsecured creditors, and as to debts and all of whom had since died. If R. had died on any day between the 1st liabilities provable, and as to the valuation of annuities and future and of January and the 31st of December, 1880 (bɔth days inclusive), and had contingent liabilities respectively, as may be in force for the time being died a bachelor, such next of kin would be the six children of one of his under the Jaw of bankruptcy with respect to the estates of persons deceased brothers. The fund was claimed by the representatives of the adjudged bankrupt.”. Section 125 of the Bankruptcy Act, 1883, gives to 1873 next of kin, and by the 1880 next of kin.
creditors of deceased persons, whose estates are insolvent, power to NORTH, J., said that the inquiries had not been answered by the chief obtain administration in bankruptcy, according to the law of bankruptcy, clerk, and there was nothing which enabled the court to say that either either by original petition in bankruptcy, or, in the case of existing set of claimants was entitled to the fund. The persons who would be proceedings for administration in another court, by application to that entitled if R. had died at the beginning of the period of seven years were not other court to transfer the proceedings into the Court of Bankruptcy. It the same as those who would be entitled if he had died at the end of that was argued for the trustees of the savings bank that section 40 of period, and it was clear also that there was some moment during the the Bankruptcy Act did not repeal section 14 of the Savings Banks Act by period at which the persons entitled would have been different from those implication, even for the purposes of bankruptcy administration, and who would have been entitled either at the beginning or the end, or, at that, if it did, the order of priority prescribed by section 40 was not any rate, they would have been entitled in different shares. The persons imported by section 10 of the Judicature Act, 1875, into an administration really entitled were those who were the next of kin of R. at the time of by the High Court, and that the bank was entitled to the priority given his death. It was settled by such cases as Re Phene's Trusts (5 Ch. 139) by section 14 of the Savings Banks Act. On behalf of the administrator it and Re Lewes' Trusts (6 Ch. 356) that, though a man who had not been was argued that in bankruptcy the priority of the bapk was abolished by heard of for seven years was to be presumed to be dead, there was no section 40 of the Bankruptcy Act, 1883, and that, by section 10 of the presumption from that fact alone that he had died at one time rather than Judicature Act, section 40 of the Bankruptcy Act was introduced into the another during the seven years, and that those who made a claim founded administration of the estates of deceased insolvents by the Chancery on his having died at a particular time were bound to prove his death at Division of the High Court, for otherwise the rights of the creditors of a that time. There was no proof of the time at which R. died, and the deceased insolvent would depend on the mere accident whether his estate case must go back to the chief clerk for further inquiry.- COUNSEL, Cozens. was administered in the High Court, or in the Court of Bankruptcy by Hardy, Q.C., and Bardswell ; Joseph Tanner ; B. Eyre. SOLICITORS, Jaques, virtue of section 125 of the Bankruptcy Act. Layton, & Co.
North, J., held that section 14 of the Savings Banks Act, 1863, was not
repealed in toto by section 40 of the Bankruptcy Act, but that it was Re TOOMER, HUGHES v. BENNETT-North, J., 1st August. rendered inoperative as regards administration in bankruptcy. Either
the Legislature intended by section 40 to take away, as regarded WILL-CONSTRUCTION—PAROL. EVIDENCE TO EXPLAIN AMBIGUITY-Costs.
bankruptcy, the priority given by the Savings Banks Act, or there was a The question in this case was whether parol evidence could be admitted casus omissus. He could not come to the latter conclusion. And his lord. to explain an ambiguity in a will. The testatrix bequeathed a legacy of ship thought that he was bound by the decision of Fry, J., in Re Maggi £500 to “The Female Orphan Agn." The fourth word in the above (20 Ch. D. 545), to hold, 'that the rules of administration in the Chancery description was obscurely written in the original will, and it was doubtfu, Division were not altered by section 10 of the Judicature Act so as to introduce whether it was “Asn." " Asm." North, J., was of opinion the provisions of section 40 of the Bankruptcy Act. The argument, that after looking at the original will, that the abbreviated word was it would be anomalous that a different rule should apply according as an in“Asm.," and that it was a contraction of the word “Asylum.” The solvent estate was administered in the Chancery Division or in the Court of legacy was claimed by two institutions, one called "The Female Orphan Bankruptcy under section 125 of the Bankruptcy Act, was answered by the Asylum,” whose asylum was situate at Beddington, in Surrey ; the other, fact that that section gave power to any creditor to apply to have the the Hampshire Female Orphan Asylum, whose asylum was situate at administration transferred to the Court of Bankruptcy. He was of Southampton, in which town the testatrix had lived. She had in her life- opinion that in an administration in the Chancery Division the bank were time subscribed to the latter institution.
entitled to priority.--COUNSEL, Upjohn; Vernon R. Smith. SOLICITORS, North, J., held that there was an ambiguity, and that parol evidence Bell, Brodrick, f Gray; Smiles, Binyon, g Ollard. was admissible, and on the evidence he held that the Hampshire Female Orphan Asylum was intended by the testatrix.
Re MARCUS, MARCUS v. MARCUS—North, J., 2nd August. The chief clerk had found that the Beddington Asylum was intended. This finding was in accordance with the direction of the judge, given after
Will-CONSTUCTION-LEGACY TO CLERKS AND WORKmex_"Six Months' hearing an argument in chambers by counsel for the two asylums. A
FULL Salaries"-EXEMPTION FROM LEGACY DUTY-ATTESTING WITsummons to vary the certificate was taken out on behalf of the Hampshire
NESS - DISQUALIFICATION–Wills Act, 1837, s. 15. Asylum. North, J., had ordered the costs of the hearing in chambers to A testator, who carried on business without any partner, made the fol, be paid out of the estate of the testatrix.
lowing bequest :-"My office and warehouse employés, such as clerks and NORTH, J., said that the parties were entitled to bring the case on before workmen, shall have to receive six months' full salaries.” He made two him in chambers as they had done, and they were also entitled to have a codicils to his will, neither of which contained any reference to the above second argument before him on a summons to vary the certificate, so that gift. Both the codicils were attested by a clerk who was in the testator's they might be able to appeal, if they should wish to do so. But he could employment at the date of his will and up to the time of his death. The not allow the costs of the second hearing out of the estate. The costs of question was what employés of the testator were entitled to the benefit of both institutions of that hearing must be paid out of the legacy --Counsel, the above gift. Three constructions were suggested—(1) Those who were Vernon R. Smith; Cozens-Hardy, Q.C., and Warrington ; C. Browne ; Cook in the employment of the testator at the date of his will ; (2) those who son, Q.O., and Byrne ; Rowden; Southall. SOLICITORS, Lovell, Son, f Pit. were in his employment at the date of his death ; (3) those who were in field; Crossman, Crossman, f Prichard ; G. Booth ; F. 'I. & G. J. 'Braiken- bis employment at the date of the will and who so continued up to the ridge; S. Whitehead.
time of his death. Another question was whether "full ” salaries meant
that the legacies were to be paid free of legacy duty. There was & Re WILLIAMS, JONES v. WILLIAMS—North, J., 28th July.
further question : whether the clerk who bad attested both the codicils ADMINISTRATION INSOLVENT ESTATE — PRIORITY — Officer of SAVINGS to which he would otherwise have been entitled under the above gift?
was disqualified by section 15 of the Wills Act from receiving the legacy Bank-Debt Due to Bank—26 & 27 Vict. c. 87, s. 14-JUDICATURE Act, 1875, s. 10-BANKRUPTCY Act, 1883, ss. 40, 125.
NORTH, J., held that the persons entitled were those employés who were
in the testator's service at the date of his death. If the testator had in. The question in this case was whether, in the administration of the tended those persons who were in his employment at the date of his will, estate of an insolvent intestate, who had been the actuary of'a savings nothing would have been easier than to mention them by name, bank, the bank were entitled to priority in respect of a debt due to them might be persons in the testator's employment at the date of his will whose by the intestate. The intestate had misappropriated moneys of the bank salaries might, by reason of their continuance in his service, have been Section 14 of the Savings Banks Act, 1863 (26 & 27 Vict. c. 87) provides have been reduced by reason of their incompetence or misconduct, or it that in case of the death, bankruptcy, or insolvency of an officer of a savings bank, having in his bands by virtue of his office moneys or effects pelled to reduce the salaries of his clerks all round.
tbe testator's business was not so flourishing, he might have been com: of the bank, the bank shall be entitled to be paid out of his assets in suppose that, in the case of a man who was in receipt of a higher salary
It seemed absurd to priority to all his other creditors. Section 40 of the Bankruptcy Act, at the date of the testator's death, the amount of his legacy should be rates and taxes, and to wages to a certain extent, and provides that, sub- salary which he had received at an antecedent time. His lordship thougbt ject to the provisions of the Act, all debts proved in the bankruptcy shall that by “full salaries " the testator meant the full salaries at the time of be paid pari passu. The section contains a proviso that it is not to alter his death, and this threw light on the question who were the persons en: the effect of section 5 of the Act 28 & 29 Vict. c. 86 (Bovill's Act), or pre- titled to take. A man who was not in the testator's employment at the judice the provisions of the Friendly Societies Act, 1875. The latter Act con. tains a provision similar to that of section 14 of the Savings Banks Act. The be no standard by which the amount of his legacy could be measured: first question raised was whether, supposing that the estate of the deceased Moreover, as the testator had no partner, the persons in his employment were being administered in bankruptcy, the priority given to the savings might be left without any employment by reason of his death, and it was bank by the Act of 1863 was taken away by section 48 of the Bankruptcy probable that he intended to provide them compensation for their loss of be no priority in bankruptcy, the bankruptcy'rule applied to the adminis- Henley (2 Ch. Rep. 162) and Parker V. Marchant (1 1. & C. (Ch.) 290); tration of an insolvent estate' in the High Court, so as to take away the but in both of them the words differed from those of the present will, priority there also. Section 10 of the Judicature Act, 1875, provides that and it seemed that some words must have been omitted from the report of
Jones v. Henley. His lordship thought that the expression “full salaries” in possession, and it could not have been so granted if the prior lease of did not exempt the legatees from paying legacy duty. It meant that the 1850 was then still subsisting, the purchaser, being bound by the consalaries were to be calculated without any incidental deductions by reason dition to admit the validity of the lease of 1876, was, therefore, bound tu of either the custom of trade or the illness of the legatee, but it was not admit that the prior lease of 1850 had come to an end when the lease of intended to relieve tho legatees from the payment of any charge, such as 1876 was granted. It was also contended that the purchaser's notion of legacy duty, which the law cast on them. On the authority of Gurney v. rescission was not a reasonable one, and that, at any rate, he ought to have Gurney (3 Drew. 208) his lordship held that, as the clerk had only attested proceeded by summons under the Vendor and Purchaser Act, and not by the codicils, which had no reference to the legacies, he was not dis an action, and that only the costs of a summons ought to be allowed to qualified.-COUNSEL, Farwell; B. 8. Ford; Bardswell. SOLICITORS, him. Pritchard, Englefield, & Co.
NORTH, J., held that the purchaser was entitled to rescind his contract,
and ordered the vendor to return the deposit, with interest from the date SAVILE v. COUPER–North, J., 2nd August.
of the notice of rescission, and his proper costs and expenses in relation to New TRUSTEES-APPOINTMENT OF SEPARATE TRUSTEES FOR PART OF
the contract and the investigation of the title. He said that the condition TRUST PROPERTY-CONVEYANCING Act, 1882, s. 5.
must be construed fairly. The vendor was seeking to deprive the pur
chaser of that to which he would otherwise be entitled. It was not sugThis case raised a question as to the construction of section 5 of the gested that the condition was fraudulent, tricky, or catching. It bound the Conveyancing Act of 1882, which provides that “on an appointment of purchaser to admit the validity of the lease of 1876, but not to admit every new trustees a separate set of trustees may be appointed for any part of matter which might be a condition precedent to the validity of the lease. It the trust property held on trusts distinct from those relating to any other did not bind him not to take the objection that the immediate reversion was part or parts of the trust property.” An originating summons was taken outstanding. The sale was a sale of the reversion, and a title to the reverout by the trustees of a will, as plaintiffs, against the tenants for life of a sion had to be shewn. It was recessary that the prior lease which was shewn legacy of £50,000, bequeathed by the will on certain trusts distinct from to be outstanding should be got rid of in some way. The condition did the general trusts declared by the will, as defendants, asking the court to not bind the purchaser to admit that the vendor was in possession of the determine whether the plaintiffs were authorized to retire or be discharged property at the time when the lease of 1876 was granted. That lease from the trusts of the will so far as the same related to the £50,000, and purported to be a lease in possession, and no doubt it was, in the belief to appoint a separate set of trustees of that legacy, or of the trusts of the of both lessor and lessee, that which it purported to be. Its validity will relating thereto, the plaintiffs themselves remaining trustees of the would not be affected by the subsistence of an unexpired lease under rest of the property subject to the trusts of the will.
which no claim was being made, especially as possession was at once North, J., was of opinion that such an appointment was not within the delivered to the lessee. The condition did not preclude the purchaser ecope of section 5.
That section contemplated the retirement of all or from taking the objection. Then arose the question whether the pursome of an existing set of trustees, and that there might be a difficulty chaser was justified in giving the notice of rescission on the 9th of in getting new trustees to act in the entire trust, and that it might be November. The vendor had given the purchaser the choice of two things expedient to divide the trusts in order to get rid of that difficulty. But it --completion of the purchase, or further inquiries to be made at his exdid not contemplate the creation for the first time of a distinct trust as to pense.' The onus was not on the purchaser to shew that the lease of 1850 part of the property when the old trustees were not retiring from the had not come to an end, it was on the vendor to get rid of that which Trusts as to the rest of the property. The words pointed to the power appeared to be an existing incumbrance on the property. And, even if being used when new trustees were being appointed -i.e., when the old the onus was on the purchaser, he had done all which could be required of trustees, or some of them, were ceasing to be trustees altogether. The him. At the time when the notice of rescission was given a good title had plaintiffs desired to read the section as it it had said that, on every occa not been shewn by the vendor, and, after the long correspondence which sion when it might be thougbt desirable to do so, a separate set of trustees had taken place, the purchaser was entitled to give the notice, provided might be appointed for any part of the trust property held on distinct that he allowed the vendor a reasonable time within which to procure the trusts. But that was not what the section said. It would be easy to con- required information. But the vendor had already said that he would do ceive cases in which it might be desirable to make such an appointment, nöthing more except at the purchaser's expense. Consequently, according but such cases were not likely to occur frequently, and his lordship did to Nott v. Riccard (22 Beav. 307), the purchaser was justified in giving a not think that they were in the contemplation of the framers of the peremptory notice of rescission. As to the question of costs, the object of section. -Counsel, Ingle Joyce ; R. C. Dobbs. SOLICITORS, J. E. For of Co., the Vendor and Purchaser Act was to enable questions between vendors and Murray, Hutchins, $ Stirling.
purchasers to be decided expeditiously and cheaply, and, if the purchaser
had deliberately adopted the more expensive mode of procedure, his lordship KING v. CHAMBERLAYNE-North, J., 20th July.
would not allow him the additional costs arising from his so doing. But VENDOR AND PURCHASBR-RESCISSION OF CONTRACT- RETURN OF Deposit, there was nothing vexatious in what he had done. And at that time there REASONABLENESS OF NOTICE OF RESCISSION-ACTION OR SUMMONS-Costs.
was some doubt whether interest on the deposit could be obtained by a sum
mons under the Vendor and Purchaser Act. Re Hargreaves and Thompson's This was an action by a purchaser for the return of his deposit, with Contract (32 Ch. D. 454, 30 SOLICITORS' JOURNAL, 516), in which the Court interest and costs. The purchaser had given notice to rescind his contract, of Appeal held that this could be done by summons, had not been decided on the ground that the vendor had failed to shew a good title to the at the time when the present action was commenced. There was no ground, property. The property sold was a freehold ground-rent securel by a therefore, for depriving the purchaser of any part of his costs. - Counsel, lease dated the 28th of January, 1876, for a term of ninety-nine years, Cozens-Hardy, Q0., and E. Chitty; Cookson, Q.C., and Rendall. SOLICIand it formed one lot (No. 136) among others of a similar nature. The TORS, Kingsford, Dorman, & Co.; Desborough & Son. vendor was a tenant for life, eelling under the provisions of the Settled Land Act. One of the conditions of sale was, * All purchasers will buy subject to, and admit the validity of the leases stated in the particulars.
PASHLEY v. CHAPMAN-Kekewich, J., 1st August. The day fixed for the completion of the purchases was the 13th of April,
Costs—IDENTITY-ADMINISTRATION ACTION. 1885. From the abstract of title delivered to the purchaser, it appeared In this action a point arose as to what fund should bear the costs of the that Lot 136 had been the subject of a lease for lives dated the 18th of suit which had been brought by a residuary legatee for the purpose of December, 1850. The abstract contained a note stating that this lease had establishing his own identity. By the will of J. Pashley the trustees been surrendered, and the lease of 1876 thereupon granted, but no were directed to divide the estate, after converting it into money, amongst surrender was abstracted. It appeared also that the lease of 1876 bad been the testator's five children, naming them, one being “ Joseph Allen granted by the vendor's father, who was then the tenant for life under Pashley." J. A. Pashley had gone to Australia some twenty years ago, the settlement of the property, under a leasing power contained in the and had been lost sight of, having written to his relatives once or twice settlement, which authorized the granting of leases made to take effect during the interval. The plaintiff claimed his share from the trustees, in possession. The purchaser required the vendor to produce evidence but they declined to pay him, and this suit was brought. By their defence that the lease of 1850 was surrendered when the lease of 1876 was granted.
the trustees alleged that no communication had ever been received from sisted that the conditions precluded the purchaser from requiring they claimed the benefit of all statutes of limitation or rules of law if the
The vendor's solicitors made inquiries, though they, in the plaintiff ; that proper advertisements had been issued for him, and evidence of the surrender. In the course of the inquiries it appeared identity were established. This was the trial of an issue directed as to that the lease of 1850 had been granted for three lives, and that one whether the plaintiff was, in fact, the Joseph Allen Pashley mentioned in of those lives was still in existence, but that when the lease of 1876 the will. was granted possession of the property was at once given to the lessee, KEKEWICH, J., said (after hearing evidence) that he was satisfied of the and that he had been in possession under it ever since, no claim having identity of the plaintiff. There would be a general account, and the been since made under the lease of 1850. A long correspondence took place costs of the action would come out of the estate before division into between the respective solicitors, and various inquiries were made, but the shares. There had been no severance of the plaintiffs, and, moreover, surrender. At last, on the 21st of October, 1885, the vendor's solicitors benefit of the other residuary legatees. The plaintiff was quite entitled wrote to the purchaser's solicitors, We ust now call upon you either to
to go to the colonies if he liked, and he had not wilfully kept out of the complete, or to state whether you desire to have any and what further way, so was entitled to have the costs taken out of the general fund, and inquiries made, or information procured. Further inquiries must be made not out of his share of the residue. —Counsel, Murphy, Q.C., and Fossett at your expense.”. On the oth of November the purchaser's solicitors Lock ; Warmington, Q.c., and Bramwell Davis. Solicitors, W. B. Styer ; wrote to the vendor's solicitors that, as the surrender of the lease of 1850 H. A. Morse. could not be shewn or procured, and it was clear that one of the lives was still in existence, the purchaser declined to complete his purchase, and required the vendor to return his deposit, with interest and costs.
On the 20th of December, 1885, this action was commenced.
HARVEY v. OLLIVER-Kay, J., 19th July.
It was argued on behalf of the vendor that, inasmuch as the lease of 1876 would not
The following is a more detailed statement of the facts of this case, have been valid under the power if it had not been granted to take effect I which was shortly reported ante, p. 644.
The last surviving trustee died on the 24th of January, 1883, and the the pockets of the solicitor in addition to the costs he is entitled to as new trustees were appointed on the 3rd of March, 1883. The writ in against the company, Nothing ought to be done certainly to countenance the action was issued on the 20th of January, 1883, and, by an order of or assist such proceedings. The client sends to his solicitors for their bill, the Appeal Court of the 26th of June, 1885, the trustees were given their and they send for him and hand him these bills—that is, they hand them costs of the action as between solicitor and client up to and including the to bim as their bills, and they were their bills. The master erroneously appeal. The order under which the present question arose was made on declined to tax them as not being signed ; but that was not a good ground further consideration on the 28th of June, 1886 (not on the 27th of March, for declining to tax them. The judge seems to have been induced to 1885, as previously stated), and it was thereby "ordered that it be referred believe that the bills were not delivered as bills of costs, and that the soli. to the taxing master to tax the costs of the plaintiffs and defendants citors might deliver another. But in that case the master would not see
from the foot of the last taxation directed by the said order of the the other bill off which the £100 had been taxed. The object, no doubt, 26th of June, 1885
and including in the costs of the defend. of the solicitors was that if their claim was disput they might deliver ants (the new trustees)
“any costs, charges, and expenses another. LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, R. J. Parker ; properly incurred by them as trustees of the will of the said John Olliver Chambers and C. A. Lindon.—Times. 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 report as first, were items in the bill of costs of the solicitor for the original trustees and for the donee of the power of
BANKRUPTCY CASES. appointment for preparing transfers of four mortgages and counsel's fees
Ex parte SAYER, Re MANSEL—0. A. No. 1, 22nd July. thereon, searching for old deeds, counsel's fee for re-settling draft
REMOVAL OF TRUSTEE POWER OF COURT TO RESTRAIN transfer, fair copies of transfers, letter to new trustees as to a difficulty in BANKRUPTCY one of the mortgages, engrossing transfers, attending solicitor of the CREDITORS FROM MEETING-BANKRUPTCY Act, 1869, ss. 65, 72, 83 (4) — executor of the last surviving original trustee who required alteration in BANKRUPTCY Act, 1883, s. 86 (1). one of the transfers, altering the transfer, counsel's fee, and stamping
The question in this case was whether the Court of Bankruptcy had transfers. The first of these items was dated the 3rd of April, 1883.
power, in a liquidation under the Bankruptcy Act, 1869, to restrain the Tbis bill had been paid by the new trustees in order to obtain the trans.
creditors from holding a meeting for the purpose of removing the trustee. fors; and they had also paid the bill of the solicitor for the executor of Sub-section 4 of section 83 of the Bankruptcy Act, 1869, provided that the last surviving original trustee, which consisted of charges for going
“the court may, upon cause shewn, remove any trustee. The creditors through accounts, perusing the appointment and transfers, and attending may, by special resolution at a mecting specially called for that purpose, at the execution thereof; but this bill, the first item in which was in
of which seven days' notice has been given, remove the trustee and ap. April, 1883, was not disallowed.
point another person to fill his office." (Sub.section 1 of section 86 of The charges referred to as “secondly” consisted of items in the bill of the Bankruptcy Act, 1883, is expressed in almost identical terms.) Secthe solicitor to the new trustees who had been retained by them on the 19th i tion 65 of the Act of 1869 conferred on the London Court of Bankruptcy 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 her Majesty's Superior Courts of Common Law at Westminster, or by any
“all the powers, jurisdiction, and privileges possessed by any judge of attending on the new trustees to get instructions, perusing the will, check; judge of her Majesty's High Court of Chancery," and section 72 enabled ing the accounts, considering and advising on letters from the donee and the Court of Bankruptcy to decide all questions
" which the court may her solicitors, perusing and considering draft appointment, fair copy, and deem it expedient or necessary to decide for the purpose of doing com: advising on the same, and attendances on the new trustees. Those referred to in the report as "thirdly” were items in the same bill ruptcy is a branch of the High Court) In the present case the debts
plete justice." (Under the Bankruptcy Act, 1883, the Court of Bankas those first mentioned. They included letters to the donee as to the approved in the liquidation amounted to 611,625, including a proof by a Mr. pointment of new trustees, to others asking them to be trustees, perusing Norton for £8,498. The trustee had given notice of a motion to expunge the will and accounts with a view to preparing the appointment, inter- Norton's proof. A meeting of creditors was called by certain creditors views with proposed new trustees, drawing appointment of new trustees, who had bought up Norton's debt, for the purpose of considering the recounsels' fees, examining into a question of a power of sale and an moval of the trustee and appointing another person in his place. A day erroneous distribution of the trust estate and looking for documentary was already fixed for the hearing of the motion to expunge, and the evidence on the point, counsel's opinion thereon, attendance on the solici registrar, on the application of the trustee, made an order restraining the tor of the executor of the last sarviving original trustee, going through creditors from holding the meeting, until after the motion to expunge the lists of securities. The above items were all between the dates October proof should have been heard. The creditors appealed, and it was urged 13, 1882, and March 3, 1883, the date of the appointment. The taxing master's reasons for disallowing the objections of the de
that, as by section 83 (4) absolute power was given to the creditors to fendants to the taxation were as follows :
renove the trustee, the court had no jurisdiction to restrain them from
doing so. “I have considered the objections of the defendants John Olliver Vallance and Walter Sydney Livesay to my taxation. The order directs L.JJ.) affirmed the decision. Lord Esuer, M.R., said that the question
THE Court of APPEAL (Lord Esher, M.R., and LINDLEY and Lopes, the taxation of the costs of the objectants and not the costs of the retiring trustees. I have not gone into the reason of their retirement or whether not absolutely, but until the question of the validity of a debt, which was
was whether there was jurisdiction to restrain the holding of the meeting, they passed their accounts, not being directed by the order to do so. already sub judice, had been determined. The usual practice is for the retiring trustees to render their solicitor's
In his lordship's opinion seccosts and their accounts to their beneficiaries, and then transfer the trust
tions 65 and 72, or one of them, gave the jnrisdiction. And, under the estate to the new trustees. For the above reasons I disallow the objection. The interest of the creditors who had bought up Norton's debts was
circumstances of the case, the registrar had rightly exercised the jurisdictions 1, 3, 4, and 5." The second objection was allowed, and the sixth was immaterial to this pecting that the object of the meeting was to get a trustee appointed who
that it should not be investigated, and the registrar was justified in sus. principle only; that his lordship refused to discuss the items, and that they of the whole debts that the creditors who were entitled to vote in respect are still subject to the taxing master's discretion.
of that debt would be able, if they wished, to carry the resolution removing the trustee. It was perfectly right, therefore, that the question whether there was any such debt should be first decided. LINDLEY and
Lopes, L.JJ., concurred. --Counsel, Cooper Willis, Q.C., and R. Vaughan CASES AFFECTING SOLICITORS.
Williams ; Everitt, Q.O., and Henry Kisch. SOLICITORS, Ellis, Munday, $ Ex parte D'ARAGON, In the Matter of A FIRM OF SOLICITORS— Bartrum ; Beyfus f Beyfus.
C. A. No. 1, 2nd August.
Ex parte SAVILLE, Re SAVILLE-C. A. No. 1, 22nd July. Mr. D'Aragon had brought an action against a railway company for an
BANKRUPTCY-RECEIVING ORDER-JUDGMENT Debt-Power Of Court To injury caused by an accident, and he recovered £300 as damages. His
GO BEHIND JUDGMENT. solicitors sent in a bill of costs to the railway company amounting to £284, from which the master, on taxation, taxed off £100, reducing it to made against him on the petition of a solicitor, who had recovered judgment
This was an appeal by a debtor from a receiving order which had been £184. They then added the £100 so taxed off to their bill of costs against against him in an action in the Queen's Bench Division for the taxed amount call at their office, which he did, and they handed him an account in ord. 14. The debtor had filed an affidavit in opposition to the plaintiff's further costs as between solicitor and client amounting to 233; and they to a surcharge against the solicitor exceeding the amount of the tared of £153. He asked them to explain this, and they gave him the bills, but He did not, however, appeal from the order of the master to enter judg: master declined to tax them as not being duly signed; and a judge at charge before the taxing master, but had not supported it by any evidencie. livered" as bills of costs. A divisional court, however (Cave and Mathew, tor, and that point was decided against him by the taxing master, and JJ.), made the order. This was an appeal by the solicitors against that afterwards by North, J., upon an application to review the taxing master's decision. THE COURT held that the client was entitled to have the bills taxed.
certificate. Lord Esuer, M.R., said this was the way in which the law was discredited before the registrar as to what had taken place before the taxing master
and proposed to prove the alleged surcharge. Evidence was adduced accident recovers large damages, and a great portion of it is to go into then held that no case had been made out for going behind the judgment,
and refused to allow the debtor to adduce evidence as to the surcharge. was a fraudulent preference under section 48 of the Bankruptcy Act, 1883, On behalf of the appellant reliance was placed on Ex parte Lennox further called upon the respondent to “take notice that in support of the (16Q. B. D. 315, 30 SOLICITORS' JOURNAL, 46) which, it was argued, shewed said motion an affidavit of the said trustee and a transcript of a portion of that, on an application for a receiving order founded on a judgment debt, the shorthand writer's notes of the public examination now on the file of the Court of Bankruptcy would go behind the judgment, and would, ií proceedings in the said bankruptcy will be read and used.” The county the debtor alleged that there was no valid judgment debt and tendered court judge was of opinion that, except by consent, the notes in question evidence to shew that that was so, inquire into the validity of the debt. were inadmissible, but submitted the case to the High Court. On behalf of
THE COURT OF APPEAL (Lord Esher, M.R., and LINDLEY and LOPES, the trustee it was urged that it was only sought to use the sworn answers L.JJ.) afirmed the decision. Lord Esher, M. R., said that Ex parte Lennox of the bankrupt in the same way as an affidavit, and that it was open to only shewed that the mere existence of a judgment against the debtor did the respondent to have given notice that he would require the bankrupt not prevent the Court of Bankruptcy from going behind the judgment, to attend for cross-examination like any other deponent; that the public if it saw sufficient reason for doing so, but it did not decide that, on examination of the bankrupt stood on a different footing from a private the mere suggestion of the debtor that the judgment debt was invalid, examination under section 27 inasmuch as every creditor could appear and the Court of Bankruptcy was bound to go behind the judgment and in- cross-examine him thereon ; and, further, that even though the answers of quire into the validity of the debt. A judgment debt was of itself suffi- the bankrupt in his public examination might not be admissible in every cient to found a bankruptcy upon. If a suggestion was made, and some motion, still they were admissible in a motion of this kind, where the only plausible evidence was offered, that the judgment debt did not really question was as to the motive and intent of the bankrupt in making this exist, it might be right to go behind the judgment. But, if there were transfer. circumstances which shewed almost to a certainty that the suggestion of Cave, J., held that the examination could not be received in evidence. the invalidity of the debt was idle and frivolous, it was impossible to say His lordship said that no authority could be cited for the proposition that that the Court of Bankruptcy was bound to enter into a lengthy and ex- the evidence of a witness taken in one proceeding was evidence in some pensive inquiry. In the present case nothing had been offered to the other proceeding against a person who was not a party to the former proregistrar which the debtor had not had ample opportunity of going into ceeding. It would be in the highest degree unfair that a statement of the on previous occasions, if he had chosen to do so, and the registrar was bankrupt on his public examination should be evidence against quite right in refusing to go behind the judgment. LINDLEY, L.J., con every creditor who had anything to do with the bankruptcy, and curred. Lopes, L.J., said that Ex parte Lennox was not a decision that a even against persons who had nothing to do with it. The convenisuggestion made by the debtor, which the surrounding circumstances ence would certainly be on the side of the trustee, whom it would shewed to be unreal and unsubstantial, was a reason for going behind place in a very enviable position, but his lordship, sitting as a judge, must a judgment. COUNSEL, R. Vaughan Williams ; Cock, Q.C., and Henry not look at the convenience of the trustee, but at the convenience of all Kisch. SOLICITORS, D. E. Chandler; Lewis f. Lewis.
parties and the interests of justice, and it would be a grave injustice to
say that such evidence was admissible. There might be a tendency on Ex parte BLUCK, Re BLUCK—Cave, J., 7th July.
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 BANKRUPTCY-Proor—MOTION BY BANKRUPT TO EXPUNGE-LOCUS STANDI therefore unreliable. Unless some special enactment in the Act of Parli
-PROVABLE Debr— BANKRUPTCY ACT, 1883, s. 37, SCHEDULE II., R. ment or some definite decision of a competent court could be pointed out, 25.
evidence of this kind ought not to be received. It would be another This was a motion on behalf of the bankrupt to expunge a proof on the matter if the parties consented, but in the absence of any authority, or of ground that there was no liability at the date of the receiving order which consent, his lordship was certainly disinclined to make a precedent.was subject of proof. On December 18, 1886, a receiving order was made Counsel, Sir Edward Clarke, S.G., Muir Mackenzie. Solicitors, The Soliagainst the debtor. On December 20, 1886, verdict and judgment for citor to the Board of Trade. 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. The bankrupt now moved to
At a meeting of the directors, held at the Hall of the Incorporated Law 2nd schedule to the Bankruptcy Act, 1883, which provides that " The Society on Thursday, the 4th 'inst.-—the following being present-viz., court may also expunge or reduce a proof upon the application of a Mr. Boodle (chairman), Mesers. Doyle, Nisbet, Lucas, Sawtell, Scadding, creditor if the trustee declines to interfere in the matter, or, in the case of Sidney Smith, and Arthur Carpenter (secretary)-grants amounting to a composition or scheme, upon the application of the debtor.” It was
£85 were made to members' cases, and £10 to a non-member's case. further urged that the action had been commenced in 1884, and that the Three new members were elected, and the ordinary general business was debtor, by bringing an action, bad placed himself under an obligation to
transacted. pay any costs.
Cave, J., allowed the application. His lordshiy said that the objection THE ASSOCIATION FOR THE REFORM AND CODIFICATION
OF THE LAW OF NATIONS.
BILLS OF LADING.
even though the loss from these may be indirectly attributable to some imposed when judgment was given against him. It would be carrying fault or neglect of the crew.” the court too far to say that in this case there was an obligation before the Mr. JOHN GLOVER (London) seconded the resolution. receiving order.-COUNSEL, Abrahams ; Sidney Woolf; Broxholme. Solici M. CLUNET (Paris) moved an amendment to the effect that, so far as the Tors, M. Abrahams, Son, & Co; Johnson, Harris & Dowding.
negligence of the crew was concerned, the shipowner should only be freed
from responsibility for “the acts of gross fault and recklessness” of his Ex parte BOARD OF TRADE, Re BRUNNER-Cave, J., 5th July.
servants. After much discussion, M. Clunet's amendment not being BANKRUPTCY—Public EXAMINATION—Answers of BANKRUPT-SUBSEQUENT and it was carried unanimously.
seconded, the chairman put Mr. Gray Hill's resolution to the meeting,
Sir Travers Twiss then took the chair.
M. LEBEL (Paris) read a paper on "The Conflict of Laws respecting rupt on his public examination are admissible in evidence in subsequent Marriage.” M. Láchau read another on the same subject, by Professor motions in the same bankruptcy as against parties other than the bankrupt Gabba, of Pisa. for an order to declare that the delivery by the bankrupt of certain watches consular conventions between different nations'a clause should be inserted
permitting consuls to celebrate marriages between men of their own nation Ham. Mr. Casserley is the eldest son of Mr. Samuel Casserley, and was and women of the country."
born in 1841. He is an LL.B. of the University of London, and he was M. LACHAU seconded the resolution.
called to the bar at the Middle Temple in Michaelmas Term, 1873. Mr. A discussion ensued, and ultimately Prof. LEONE Levi moved, and Dr. Casserley has been for some time junior prosecuting counsel to the Port D. ORELLI CORRAGIONI seconded, the following motion, which, after Office on the Midland Circuit. further discussion, was, upon the motion of Dr. WenDT, referred for further consideration to the executive council:
Mr. HENRY CHARLES RICHARDS, barrister, has been appointed Junior “That this conference recommends that no marriage shall be celebrated succession to Mr. Charles Frederick Gill, who has succeeded Mr. Ernest
Prosecuting Counsel to the Post Office at the Central Criminal Court, in between a native and a foreigner unless a duly-authorized certificate be Baggallay as senior counsel. Mr. Richards is the second son of Mr. made to the effect that there is no legal impediment to such a marriage in Frederick Richards, of Hastings, and was born in 1851. He was called the country to which such foreigner belongs. That the certificate so pro
to the bar at Gray's-inn in May, 1881. Mr. Richards has been for some duced shall be conclusive as to the capacity of such a foreigner to
time junior prosecuting counsel to the Post Office on the South-Eastern marry."
Mr. THOMAS Heath, solicitor, of Devonport, has been appointed a
Mr. Munter MACDONALD BECKINGSALE, solicitor, of Ryde, Newport, and Upon the motion of M. CLUNET (Paris', seconded by Dr. PREDOHL (Ham. East Cowes, has been appointed a Commissioner to administer Oaths in burg), it was resolved, with three dissentients, " That the association the Supreme Court of Judicature. expresses the desire that the question of the execution of foreign judg. ments should be made the object of special conventions between the dif Mr. FREDERICK SHARPLEY, solicitor, of Louth, has been elected Coroner ferent States, and that these special conventions should be based on the for the Louth District of Lincolnshire. Mr. Sharpley had for many priuciples voted by the association in its meeting at Milan in 1883." years acted as deputy coroner. He was admitted a solicitor in 1850. COPYRIGHT.
Mr. JAMES HEGER DOUGLASS, solicitor, of Market Harborough, has been On the 31st ult., Mr. CARMICHAEL (London), as secretary of the Inter- appointed Clerk to the Market Harborough Highway Board, in succession
to the late Mr. William Thomas Sheild. Mr. Douglass was admitted a national Copyright Committee, read the report of that committee, of which
solicitor in 1856. Sir Travers Twiss was chairmau. The report commenced with a reference to the Hawley Bill and the Chace Bill, both now before the United States' Mr. James Ley Douglass, solicitor, of Uppingham, has been appointed Congress, and cited Mr. J. W. Harper's opinion, as that of a member of Clerk to the County Magistrates at that place, in succession to the late an American firm honourably distinguished by their advocacy of inter Mr. William Thomas Sheild. Mr. Douglass was admitted a solicitor in national copyright, in favour of the Hawley Bill as the clearer, easier, 1886. and more direct," and conforming to the American Copyright Statute. The report then shewed that the subject of international copyright was
Messrs. DUBOIS, REID, & WILLIAMS, of 3, Pancras-lane, have been one which concerned our colonies in North America as well as our home appointed Solicitors to the Parish Clerks’ Company. 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
Mr. Robert WILLIAM PARKER, solicitor (of the firm of Heath, Parker, to the effect that this important subject was engaging the attention of Vestry Clerk of the parish of St. Olave, Hart-street, in succession to the
& Brett), of 3, New London-street, and of Tottenham, has been elected the Dominion Government.
late Mr. William Heath. Mr. Parker is solicitor to the Tottenham Local
Mr. Thomas BARKER, solicitor (of the firm of Haigh, Barker, & Barker,'.
Local Board. Mr. Parker was admitted a solicitor in 1870.
Mr. WILLIAM BURTONSHAW, solicitor, of Doncaster and Crowle, has
been appointed Clerk to the Crowle Local Board. Mr. Burtonshaw was HIGH COURT OF JUSTICE.-CHANCERY DIVISION. admitted a solicitor in 1884. NOTICE.
Mr. ALFRED WHALEY COLE, Q.O., has been appointed “o act as Puisne Long VACATION, 1887.
Judge of the High Court of Justice of Griqualand West. Mr. Cole is the Mr. Justice Kay's chambers will be open for Vacation business during fourth son of Mr. William Nicholas Cole. He was called to the bar at the the Long Vacation. All applications to the Vacation Judge in chambers Middle Temple in Hilary Term, 1850, and he is a Queen's Counsel for the must be made there.
Cape Colony. Royal Courts of Justice, August, 1887.
Mr. CLEMENT ELPHINSTONE LLOYD, barrister-at-law, has been appointed a Revising Barrister on the North Wales and Chester Circuit, in the place of Mr. W. Langford Ffoulkes, who has resigned his appointment.
Mr. GEORGE WORTHINGTON, barrister, has been appointed Judge of
son of Mr. George Worthington, of Liverpool, and was born in 1825.
was called to the bar at Lincoln's-inn in Ħilary Term, 1861. OBITUARY. Sir STEPHEN WALCOTT, K.C.M.G., died at his residence, Grange-park,
PARTNERSHIP DISSOLVED. 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
George TRAVELL TRAVELL and PARKER WOODWARD, solicitors (Travell called to the bar at Lincoln's-inn in Hilary Term, 1828, and he practised
& Woodward), of Victoria-buildings, Nottingham. July 29. for a few years in the Court of Chancery. He became an assistant poor
[Gazette, August 2.] Jaw commissioner in 1832, and from 1835 till 1838 he was chief secretary to the Governor-General of Canada. He was secretary to the Emigration
GENERAL, Commission from 1840 till 1860, when he became an emigration commissioner, and he had been Chief Colonial Land and Emigration Commis
The judicial members of the House of Lords will rise for the vacation at sioner since 1877. He was created a Companion of the Order of St.
the end of the present week. Michael and St. George in 1872, and a Knight Commander of the same In the course of a debate on High Sheriffs, in the House of Lords, Lord order in 1877. Sir 8. Walcott was married in 1838 to the only daughter Bramwell said that, though he was in a minority among his brethren, he of Mr. John Davidson, of Quebec.
did not think the dignity of her Majesty's judges was augmented by the My. EDWARD HEelis, solicitor, of Appleby, died at that place on the
attendance of the high sheriff at the assizes. 25th ult. from rheumatic fever. Mr. Beelis was the son of the Rev. On Tuesday five actions were in the paper for trial before Mr. Justice Edward Heelis, Rector of Longmarton, Westmoreland, and was born in Hawkins with common juries. On taking his seat, however, his lordship, 1835.
He was admitted a solicitor in 1856, and he had practised at addressing the leaders of the bar, said he was sorry to find that, though a Appleby for about thirty years. He had a large private practice, and he list of causes had been drawn up for him to try in London, get the was solicitor to Lord Hotbfield. Mr. Heelis had been for several years pressure of business compelled him to leave at once for Chelmsford. registrar of the Appleby County Court (Circuit No. 3). He was at the had come up only yesterday from Derby, and thought he had had enough time of his death associated in partnership with his ron, Mr. Edward of circuit ; but this morning Mr. Justice Grove's marshal had come and Alexander Heelis, who was admitted a solicitor in 1879. Mr. Heelis was requested his presence at Chelmsford. His lordship was very sorry, but buried at Longmarton on the 29th ult.
he had no alternative. If there was any case which he could dispose of at
once he would take it. APPOINTMENTS.
On Saturday a case at the Warwick Assizes disclosed a somewhat curious Mr. SAMUEL WILLIAM CAssenley, barrister, has been appointed Criminal trates at Kugby to take phointernal con these easizeste Beach woman had a baby who has been appointed Stipendiary Magistrate for the borough our West and the children on the 18th of July to Warwick Gaol, when the Law Pleader to the Port Office, in succession to Mr. E nest Baggallay, about a year old, both being at the breast. The police took the prisoners