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

HOY, WALTER, Romtord rd, Forest Gate, Nurserymau. High Court. Pet July 16. Ord Aug 5

Htronxs, WILLIAII. and THOMAS OWEN, Bangor, Ironmongers. Bangor. Pet Aug 2. Ord Augb

LAUNDON, J OIIN EADY, Kibworth Beauchamp, Leicestershire, Butcher. Leicester Pot Jul 16 Ord Aug 5

[ocr errors]

LEARMONTII, JOSEPH STEPHEN, King's Lynn, Lodging-house Keeper. King's
Lynn. Pet Aug 2. Ord Aug 6
LEWIs, HENRY, Caldicot, Mon, Grocer. Newport, Mon. Pet July 30. Ord Aug 8

[ocr errors]
[ocr errors]

y . u MEADOws. ANDREW lifinns. Kirby Bellars, Leicestershire, Farmer. Leicester. Pet July 9. Ord Aug 5

MILLS, J OSEPII. Hanley, Staffordshire, Brickmaker. Hanley, Burslem, and Tunstall. Pet Aug 2. Ord Aug b

[ocr errors]

Ord Augii. PABKJJNSON, ANK Aarnun, Leicester, Caterer. Leicester. Pet June 29. Ord u y 19

PIIILLIPs, WILLIAM, Hereford, Coal Agent. Hereford. Pet Aug 6. Ord Aug 6

PICCIRILLO, 0ArAnINA. Wigmore st, Cavendish sq, Italian Warchouseman. High Court. Pet April 80. Ord Aug 6

PooLE. REGINALD CLAUDE. and EDWARD FRANCIS LAMBERT Bnowx. Queen Victoria st, Mantle Manufacturers. High Court. Pet Aug 3. Ord Aug 4

P0'1'1‘ER,TIIOM6\S.l Gosforth, Northumberland, no occupation, Newcastle. Pet Au 4 ‘rr Au 4

[ocr errors]

8 SYKIIS, BENJAMIN. Liverpool, Gent. Liverpool. Pet July 12. Ord Aug 2

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

The Solicitors’ journal and Reporter. LONDON, AUGUST 20, I38".

CURRENT TOPICS.

Br AN uanoa it was made to appear last week (mile, p. 687) that the five Chancery judges had disposed of “ about 120 ” actions und further considerations during the sittings just ended. The npmber disposed of was “about 220 " ; and therefore the remainder 0. the 5->0 undisposed of is 335, and not 435.

[merged small][merged small][graphic]

s_0fr WEDNESDAY, the 17th inst, the first day of the Vacation ‘tl'_"89» lflh ustice K1-:Ki:\vIciI had before him a considerable list °,f 3° ”PPlicali0ns. The sitting lasted till nearly half-past three §Q1°°k» and about 22 orders were made, the rest of the applications elllg postponed at the instance of the parties. M fTH§ ENn.icorr perjury case will possibly give rise to a question 0 evidence in connection with the admissibility of the statements pliiade by the accused and other persons at the public inquiry before h e Chief Commissioner of Police. The magistrate at Bow-street tflfl determined to exclude from the depositions everything which Palgflplred at that inquiry ; but it is diflicult to see how the defendzntsvoluntary statements can be excluded at the trial. It has .99“ §°\e}‘Hl times held that depositions taken on a compulsory glveillgfl-tion in a bankruptcy proceeding are evidence against the 2eponernt in a subsequent criminal proceeding ; and in Rey. v. C0010 j, . “- R-_ 55?», 4 P. 0. .599) the Judicial Committee of the “W _C0uncil laid down that all depositions legally taken on oath are evidence against the witness on a criminal charge, except such as he has objected to as having a tendency to criminate him, and that answers given without objection “ arc to be deemed voluntary.” ffljlin this it would follow ii fortiori that statements made volunta.“1Y and not on oath are evidence against the declarant on his £3 - The statements made by other persons at the inquiry, W51} l'h_eY Would, of course, be evidence against the accused if Slade 111 1118 presence, could not be proved in their absence. On m°,°th°r 1141115. if any such persons should be examined at the b E , they could be cross-examined as to their previous statements 91°F!-1 Sir CHARLES Wsnnaiv. M

T112 QUESTION of estoppel by acquiescence was considered

[graphic]

=_l CASES REPORTED THIS wizizic. b i

y the Court of Appeal in the recent case of Proctor v. _Ber1_ms (mile, p. 691), which was an action to restrain the infringement of a potent, the acquiescence relied upon being that, while the defendants’ machines were on sale, the plaintiff had ssk_ed~certain of their customers to give his own machine a trial, as it was better than that sold by the defendants, and that he had not then given the defendants notice that they had been guilty of infringement. The chief reliance was placed upon Lord Cii.\Nw0nrn’s dictum in Ramaclen v. Dyson (5 H. L. Cas. 140) to the eifect that a person who suffers a stranger to build upon his land, without pointing out the trespass at the earliest possible opportunity, is afterwards estoppcd from asserting a title to the property on which the other party has expended money. Lord Justice Corrox, however, pointed out that a patentce’s rights were not dependent upon his giving people notice not to infringe his patent, and that the question of the defendants’ bona flzles was im~ material. Moreover, there was nothing to lead to the conclusion that the plaintiff supposed the defendants to be ignorant of the existence of his patent. There was no acquiescence, and the plaintiff not having made any representation upon which the defendants were entitled to rely, or by reason of which they bad been in any way prejudiced, there could be no acquiescence.

M

THE 0BSERV.»\'[‘IONS recently made by Mr. Justice H.iwKiNs, while on circuit, on the subject of one of the provisions in the Criminal Law AmendmcntAct, 1885, may operate as a caution to those who are responsible for the hasty manner in which legislation is too often pressed forward at the present period of the Parliamentary year. Section 4 of that Act empowers the court or justices upon the hearing of a charge of having intercourse with a girl under the age of thirteen, or of attempting such an offence, to take the evidence of such girl without an oath if it appears that she does not understand the nature of an oath, but “is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth ; ” but no such discretion is given where a girl of the same age is a witness upon a minor charge of indecent assult, it being restricted to charges of the offences created by the section. The learned judge observed that the statute was full of blunders, and he might have more particularly pointed out another absurdity in the same section— namely, the proviso that a child whose evidence has been taken otherwise than on oath, because she does not understand the nature of an oath, is still “liable to indictment and punishment for perjury.”

[graphic]

THE RECENT REPORT of the committee on the stafi of the legal offices undoubtedly afiords ample justification for the proposed reduction of the number of the Masters of the Supreme Court from eighteen to fifteen. It will be remembered that the former number was fixed as the maximum by section 8 of the Supreme Court of Judicature (Officers) Act, 1879 (42 &; 43 Vict. c. 78), and that the masters were reduced to that number last year by the retirement of the senior master, Sir Fm-znranrcic Pontoon. Whe_n the masters were first intrusted with jurisdiction at chambers it was thought that their duties would become much more onerous than they had previously been, but this increase of their labours has since been to a great extent ncutralised by the appointment of Official Referees and of Examiners of the court, while the business of the original fifteen masters of the three common law courts has more recently been shared by the former associates of the same courts, the Quecn’s Coroner, the Master of the Crown Ofiice, and the Clerks of Records and Writs. The position of master, while bringing with it (after the first three years of service) a salary of the same amount as that of a County Court Judge, or allletropolitan Police Magistrate, appears, from the recent report, to involve, as a general rule, only four hours oificial attendance. It is also hmted that a whole day's holiday is not an unusual occurrence even in the middle of a sitting. It is to be observed that some of the masters hold other offices, carrying with thcni‘ in each case an increase of remuneration. Thus Master Poimocu is also Q_ueen's Remembrancer, while Master GORDON acts as Registrar of judgments, and Master KAYE as Registrar of acknowledgements by married women.

[graphic]

Tue QUESTION as tothe _riglit to discovery which was raised before the Court of Appeal 111 Young v. Holloway (35 W. R. 751)

[ocr errors]
[graphic]

appears to be n novel one——namely, whether anonymous letters addressed to a legal adviser are privileged from production. Two anonymous letters had been addressed to the plaintifi in a probate action, and another anonymous letter was addressed to her solicitor, and another to her counsel. All four letters were included in the plaintifi’s aflidavit of documents. She claimed privilege in respect of them, but Mr. Justice Burr ordered all the four letters to be produced. The Court of Appeal upheld his decision as to the letters addressed to the plaintiff, but reversed it as to the two others. Lord Justice Corron pointed out that the plaintifi’s counsel could not suggest that the letters to the solicitor and counsel were intended to be used in any other legal proceedings, and he therefore inferred that they were sent for the purpose of the probate action. With reference to the argument that the letters had been communicated voluntarily by a person who was not even a quasi-agent of the plaintiff, he thought that the information contained in them was really the result of the solicitor’s labour and skill, and was “obtained” by him to be used in the litigation. Lord Justice LINDLEY, although not without doubt as to the point, observed that the privilege did not depend upon the question whether the solicitor had sought for the information, but upon the character in which he obtained it; and he characterised the argument that the solicitor could not be said to have “obtained” the information, because it had been voluntarily given to him, as being “too refined.” Lord Justice BOWEN held that the case was covered by Lyell v. Kennedy (32 R. 497, 9 App. Cas. 81), where Lord Bnacxnuax said that public policy protects a solicitor from disclosing any information which he obtains while employed in that capacity. Applying that rule, it was difilcult to see why the letters were sent to the plaintifl’s legal advisers if they were not sent for the purposes of the action; and therefore information voluntarily given must stand on the same footing as to privilege from production as information which had been sought for by the solicitor himself.

[graphic]

Trrs wonx of tightening the rules relating to trustees’ investments goes on briskly. The recent decision of the House of Lords in Whiteley v. Learoyd, that a trustee is not relieved from responsibility by the report of a valuer employed by him to value property for the purpose of a mortgage investment, but is bound to exercise an independent judgment on the report, has indicated a new direction in which the screw may be applied ; and it seems probable that for the n_ext year or so the lists of the courts will be filled with applications against trustees, on the ground that, acting on the now antiquated notion that it is not worth while both to keep a dog and to bark yourself, they have accepted the valuation of the valuers employed by them with regard to mortgage investments without “ exercising an independent judgment ” upon it. In Re PartingIon, Pm-tmyton v. Allen, which we report elsewhere, Mr. Justice STIRLING lays down the result of Speiyht v. Gaunt (31 ‘V. R. 401, 9 App. C_as. l) and Whiteley v. Learayd as follows :-—“ Atrustce may avail himself of assistance and advice in the execution of his trust but having obtained that assistance and advice, he is not bound [qy. entitled] to adopt it blindly, but must exercise his judgment upon it to the same extent to which an ordinarily prudent man would exercise his judgment in dealing with his own affairs.” Assuming that the report of the valuer on a proposed mortgage security states (as 1_t ought to state), not merely that the property will be a good security for the amount proposed to be invested, but also the actual selling value of the property, does the above passage mean that the_“ judgment” _of the trustee is to consist of a simple °°mP}1t*\l71°i1 to _ ascertain whether such selling value shews a margin of one-third in the case of land, and one-half in the case of buildings ?_ Apparently not, for that can hardly be said to be an ‘ exercise of judgment.” If not, then the trustee who has “l“l‘I°)'ed we "1118! must practically re-value the property. The recent decision further shews that, in the case of property emplo ed hr business P‘"P°5°5» Btriiiteo must require avaluer not meryel to state the selling value of the property as it stands but also this, value of the land and buildings proposed to be mortgaged inde_ pendently of their value for business purposes~ and it is to be presumed that the rule as to the margin of value is to be a lied to this last value, and not to the value for business urpp

This extension of the rule should be carefully observeld plieit

should be upheld it will render it practically impossible for

trustees to advance on mortgage of business premises, for, of course, mortgagors of such premises will not be satisfied with an advance to the extent of one-half the value of the land and buildings on which their business is carried on.

[ocr errors][merged small]

Tin: questions of the presumption of legitimacy and of the admissioility of evidence tending to bastardise the issue of married women have, on three recent occasions, been considered in the Probate, Divorce, and Admiralty Division. Hetlzerington v. Heflierington (12 P. D. 112) was an appeal against an order of two justices of the peace, who had, after the conviction of a husband for an aggravated assault upon his wife, made an order for a judicial separation, under section 4 of the Matrimonial Causes Act, 1878 (41 & 42 Vict. c. 19), and ordered him to pay a weekly sum towards his wife’s maintenance and that of their children. On a subsequent application to the justices to vary the order the wife was called as a witness, and in cross-examination by her husband's solicitor admitted that she had, a few weeks previously, given birth to an illegitimate child; but the magistrates refused to receive the wife's admission, or to allowthe husband to give evidence of nonaccess, holding that by so doing they should be allowing parents to give evidence to bastardise the issue of the marriage. Sir James Hannen, besides disposing of a question as to the power of the court to entertain an application to vary the order of the justices, laid down that after the order of. the magistrates for a judicial separation, such order being equivalent to a divorce a mansd at lhoro, the ordinary presumption of legitimacy was reversed, so that it must be presumed that a child born more than nine months after the separation of the parties was illegitimate, unless it was shewn that they had come together again. He thought that the justices had been wrong in treating the case as involving an issue of bastardy instead of an issue of adultery, and that therefore it was their duty to hear the evidence of the parents.

In Pryor v. Pryor and Slzelford (35 W. R. 349, 12 P. D. 165) the question was raised upon an application to confirm the registrar’s report on a petition for variation of settlements after a decree dissolving a marriage on the ground of the wifs’s adultery. Previous to the adultery there was no issue of the marriage, but the respondent had given birth to a child after the decree m'si, an_d fourteen months after she had ceased to cohabit with the petitioncr, and she had since married the co-respondent. The petitioncr’s counsel applied to the court to refer the matter back to the registrar for the purpose of taking evidence as to the child's paternity ; but Sir James Hannen declined to allow the question Of legitimacy to be raised at that stage of the suit, and pointed out that the decree had been founded on the petit'ioner’s evidence, which was not admissible to prove the child’s bastardy. _

It is singular that the question of the legitimacy of the child of a divorced wife had never, before the case of Pryor v. Pryor and S/:e{f'or¢I, been brought before the court, and that the recent suit of Bosville v. The Attorney-General (ante, p. 598) should_be apparently the first case of this description. It was a petition under the Legitimacy Declaration Act for a declaration that the infant petitioner was the legitimate son of Mr. and Mrs. Bosvillf. whose marriage had been dissolved on the ground of the wifes adultery. The wife had eloped from her husband's house on the 30th of June, 1884, with Craven, the co-respondent, and hsd1°_“ the 3rd of April, 1885, given birth to the petitioner. The petititioner’s counsel called no medical evidence at the trial, bill submitted that, as the birth of the child took place not more thflii 277 days after the cessation of cohabitation between the husband and wife—which was a not impossible period of gestation-—liiB , legitimacy must be presumed. The counsel for the husband called evidence to shew that, though the husband and wife slept togfltllel on the night of the 29th of June, menstruation was progressing when Mrs. Bosville left her husband’s house, and two iiiecllwl witnesses expressed an opinion that such a condition of th1n$“ rendered pregnancy before the date of her departure almost illi5°1b191 and that the period of gestation seldom exceeded 275 days. It was also shewn that the wife addressed two letters to her husband just before the petitioner’s birth, and in neithei: Of them referred to her pregnancy. Sir James Harmon, in suiniiiiiifi

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

up the case to the jury, expressed his regret that the law excluded the evidence of the parents in such cases, and he also observed that the stringency of the rule as to the presumption in favour of the legitimacy of the child of a married woman had been much relaxed in recent times. He directed the jury that the presumption of legitimacy could not be rebutted unless the evidence carried to their minds the conviction that the child had not been begotten by the husband, and he cited the following passage from the judgment of Lord Lyndhurst in Morris v. Davies (5 Cl. & F. 265): “That presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive.” The jury found that the petitioner was not the son of Mr. Bosville.

The summing up was so far favourable to the petitioner that his counsel were compelled, upon an application to a divisional court for a new trial on the grounds of misdirection and that the verdict was against the weight of evidence, to contend that the presumption of legitimacy is a przesumptio juris at do jure, and that the President ought, therefore, to have directed a verdict in favour of the petitioner, but the Divisional Court dismissed the application, and Mr. Justice Butt, in delivering the judgment of himself and the Lord Chief Justice, pointed out that the I’resident’s summing up had fully explained the law to the jury, and that it was impossible to put the case more strongly for the petitioner than by citing the above-mentioned passage from Lord Lyndhurst’s judgment in Morris v. Davies. There was thus no misdirection; and at the same time it could not be argued that the verdict was against the weight of evidence. There was no medical evidence called for the petitioner, and in the recent Aylcaford Peerage case (11 App. Cas. 1), Lord Blackburn had laid down that, though the narents of a child are not competent witnesses on an issue as tolits legitimacy, their admissions might be relevant as evidence of their conduct. All the facts relied upon by the husband appeared to be admissible according to this test, and therefore the verdict was not against tho weight of evidence. This decision is now under appeal, but it is hardly to be expected that the Court of Appeal will disturb the rule which has been accepted since the decision of the House of Lords in zllorris v. Davies, as explained by the recent Aylesfoi-J Peerage case. The Divisional Court have fully recognised the principle that the presumption of leflitlmacy cannot be displaced upon a balance of probabilities, but only by evidence which carries to the mind of the court or jury the conviction that a child born in wedlock is not the issue of the husband; but the known facts of the Boaville divorce suit lead to the conclusion that the result of the legitimacy suit is in accordance with substantial justice.

THE LAW OF GIFTS INTER VIVOS. II.

Purchases in the name of stran_qer.——It might be thought that the mere fact of A. purchasing property in B.’s name was strong evidence that A. intended to make a gift of the property to B. But this is not the case; the equitable interest results to the person who advances the money. This is the rule, whatever be the nature of the property purchased, and whether the conveyance be taken in the name of a stranger alone, or of a stranger jointly with the Puffihnser, or of a stranger in succession to the purchaser. Evidence is, however, admissible as to the motive with which the purchase was made, or as to the course of dealing with the prop‘MY for the purpose of rebutting the rule.

The eases may be classified as follows :

(1) Where a transfer to or a purchase in the name of a stranger W" held not to amount to a gift: Norfolk v. Browne (Finch Pre911- 80); Anon. (Freem. Ca. Ch. 123); E. N. & C. on Interpretah°“i °h'1D- xx.; Lewin on Trusts, chap. ix.

_(2l where a purchase in the name of a stranger was held to be a gift for his benefit. Moneys paid into savings bank, and paid into bank on a deposit note by A. in favour of his wife's nephew, whom he was educating and intended to provide for, though the nephew’s father F115 8-live: Currant v. Jago (1 Coll. 261). Stock partly purchased mfhe name of, and partly transferred into the name of, a niece, with a contemporaneous letter of gift: Beecher v. Mayor (2 Dr. 8:

[graphic]

Sm. 481). Stock purchased by husband in the names of the trustees of his settlement. He wrote a letter to his bankers which sufliciently shewed his intention that the stock should be an accretion to stock held by the trustees on the trusts of the settlement : Re Curlei-s" Trusts (14 Eq. 217).

(3) Where a transfer into the joint names of the owner and a stranger did not amount to a gift. Where the stranger was the owner’s concubine: Rider v. Kidder (10 Ves. 360).

(4) Where stock transferred into the joint names of the owner and a stranger was held to amount, under the circumstances, to a

'ft.

gl Where the transfer was originally made with the deliberate intention of benefiting the stranger, but a life interest was reserved to the donor: Standing v Bowrin_q (27 Ch. D. 341). Where there was some evidence of intention to benefit the stranger: Batstone v. Saller (19 Eq. 251 ; same case, on appeal, 10 Oh. Ap._43l) ; Fawkes v. Pascoe (10 Ch. Ap. 343); George v. Howard (7 Pri. 646) ; letter stating the object of transfer to be to save legacy duty : Deacon vColquhoun (2 Drew. 21). _

(5) For the purposes of the rule, a woman with whom a man has gone through the ceremony of marriage which he knows to be invalid: Soar v.F0sler (-1 K. & J. 152); a woman with whom a man is living in adultery: Rider v Kidder (10 Ves. 360); or a man's illegitimate issue: Tucker v. Barroio (2 H. & M. 515) (but see B8(.‘k_fiJI‘d v. Beclforil, Lofft. 490) is considered as a stranger to that man. _

Purcliau in the name of a person whom the purchaser is bound to support.—On the other hand, “ where_one_ perfloll Winds 1'1 such a relation to another that there is an obligation on that person t0 make a provision for the other, and we_find either a purchase 01' investment in the name of the other, or in the joint names _of the person and the other, of an amount which would constitute a provision for the other, the presumption arises of an intention On the part of the person to discharge the obligation to the other ; and therefore, in the absence of evidence to the contrary, that purchase or investment is held to be in itself evidence of a gift. _ Ii1_0ther words, the presumption of gift arises from the moral obligation to give" (per Jesscl, M.R., Bermet v. Benmt, l_0 Ch. D., at_p.476)_. The Master of the Rolls then proceeds to explain the doctrine of m _Ioco parenlis (see this fully discussed in E. N. C. on 1T1te1:Pll5at1°!1i 350), and continues: “So that a person an loco parenizs meanla person taking upon himself the duty of a father of a child tlp ma c provision for that child. It is clear that in that case t _c piesumption can only arise from the obligation; and, therefore, in tf at case the doctrine can only have reference to the 0lJl1gBt;0l1f (1:11 a father to provide for his child, and nothing else- _Bllt$1 Bf 1;-;h 91‘ is under that obligation from the mere fact of his being Y 6 tn etfi and therefore no evidence is necessary to shew the Obllgzhwn ° provide for his child, because that is part of his duty. _ All ‘Bin:-9 of a father you have only to prove the fact that e is _ e abet, and. when you have done that, the obligation at once B1156: I; tlii in the cage of a person in loco parenm, you must pzgve _a as took on himself the obligation. But in our law Qrqt 18 or moral legal obligation-—l do not know how to 9XP155 1 ugh‘; shortly—no obligation according to the rules of e(_1111tYl; ‘:1 a m°rt of to provide for her child; there is no such obligation t u B OOH equity recognizes as such.” _ _ _

It follows from the doctrine here laid dew; - f a child b

(1) That a transfer to, or a purchase in tde nalipipdo Amounts ii a father, or in the joint names of himself an E; (ti that child _ 1 the absence of evidence to the contrary, to E 81 izher in the imme

(2) That *1 tmnsfer t'°’ M a purchase by ahixld in the absence of, a child dofistnot afipountepldgaft to that c i of evidencet a a gl W151" i , - -

(3) That a transfer to, or_ a purchase lllftllfl nap16;f,bflRfl111g°§‘:1n mate child by its father, or in the name 0 a mix re the $271 hence of with whom she liyes, does ape; amount '60 5 B "1 " evidence that a gi t was 111 11 9 1 _ _

(4) That a transfer to, or a purchase 1% the l1l];!;llis()tf8 Z gppgiiln child whose fptheié is dzi:d;,hl;y'c‘i)1ngll.‘:rn;lfflt 91am) the absence 0 evi ence » .

(5) A transfer to, or_ a purchase. bY_a hgsbmid :26“: gliillzlfgé his {ifs amounts to a gift to the wife In t 9 =1 56 to t e con rary. _ .

Evidence as to whether the transaction was intended to amount to a gift or not may be aflorded——

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

CASES OF LAST WEEK.

COUNSELL v. LONDON AND VVESTMINSTER LOAN AND DISCOUNT CO.—C. A. No. l, 11th August.

[ocr errors]

This was an action by the grantor of a bill of sale against the grantee for trespass and wrongful seizure of the plaintiffs goods, and the question raised was as to the validity of the bill of sale. The bill of sale was given as security for a loan of £80, and interest, repayable by instalments. The bill of sale, taken by itself, was admitted to be valid, but contemporaneously with it, and in respect of the same loan, the grantor gave the grantee a promissory note for £95 12s., the total amount of the loan and interest, payable by the same instalments as in the bill of sale, and in case default was made in payment of any one instalment, the sum remaining unpaid should become due and payable. Denman, J., who tried the case, held, on the authority of Simpson v. C'har1'ng Cross Bank (34 W. R. 568), that the promissory note rendered the bill of sale void. The Divisional Court having affirmed this judgment, the defendants appealed.

Tun Covar, having taken time to consider, dismissed the appeal. Lord Esnnn, l§[.R., said that at the same time as the bill of sale, and as part of the same transaction, the grantee of the bill of sale took a promissory note for the exact amount covered by the bill of sale and interest. A bill of sale was the contract between the parties reduced into writing. Were there two contracts here or only one? Looking at the identity of dates and figures, his lordship had no doubt that there was only one contract embodied intwo documents. One document had been registered. Would the other document, which was part of the same contract, have any effect upon the registered document? If the amount payable under the promissory note were paid either to the grantee or to a third person, with whom the note had been discounted, the registered bill of sale would be of no further effect. The bill of sale would be defeated. The note, therefore, would operate as a defeasauce of the bill of sale, and, under section 10, sub-section 3, of the Bills of Sale Act, 1878, ought to have been contained in the same instrument aurl registered. The bill of sale was, therefore, rendered void by the Bills of Sale Act, 1882. Lrxnnsr and Loves, L.JJ., c0ncurred.—Covxsr.L, Crisps and Jllelnlyre; (lhannell, Q, C., and rllelslzeimer. Sorirci-rons, Thomas Yauny; Vmuln-pump.

[ocr errors][ocr errors]

Certain goods in the Albert Palace were taken in execution oi a judgment recovered by the plaintitf against the defendant, and were claimed by the claimant. The defendant, the execution debtor, was tenant to the Albert Palace Co., and the claimant was appointed by the court receiver of all the property of the company. The master made the usual order that the claimant should pay £80, the value of the goods, into court, and directed an issue. This order having been afllrmed, the claimant appealed, and contended that he, as receiver, should not be called upon to pay £50 out of his own pocket.

Tun Covar (Lord Esrisn, M.R., Lrsnaur and Lorizs, L.JJ.) allowed the appeal. They said that a claimant was as n general rule ordered to bring the money into court for the protection of the execution creditor, and if the claimant were not a receiver the order would be quite right; but it was not necessary for the protection of the execution creditor that the receiver, an oflicer of the court, who had no personal interest in the matter, should bring money into court. The order that the court would make would be that the claimant do, as an office: of the court, lwld the goods and keep them subject to the further order of the court. T1191? would give full protection to the execution creditor.—Covussi., 13- AMe-Cull; Gulry and Oannot. Sonrcirous, l[rDiarmid Q: Teather; D0fl¢l1(hW"

[ocr errors][ocr errors]

Certain creditors presented a bankruptcy petition againt the debtor» but before the petition was served the debtor died. Mr. Registrar Hazlitt ordered all further proceedings upon the petition to be discontinued. Section 108 of the Bankruptcy Act, 1883, provides that “if I debtor by or against whom n bankruptcy petition has been presented dies, the proceedings in the matter shall, unless the court otherwise orders, be continued as if he were alive. The petitioning creditor moved, N‘ 1M>"'v by way of appeal from this order. It was contended on their behalf that the court could order substituted service of the petition or dispense with ser“ce B1i°8efi19l| and that, as the debtor had assigned all his propflfti to trustees for the benefit of his creditors, the only mode of setting the deed asi e was b all ' th ' - E rze sharp, In To aralkgiltggw‘eRbank)ruPtoY_ProceediuBs to Bo on 1 P"

[ocr errors]
[merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors]
« PreviousContinue »