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bring into application the rule that no man can be judge in his own importance of following every transaction, inasmuch as a careless,
As to his voting power, the 15th section of the Act pro- though otherwise honest, director cannot shelter himself bebind his vides that 'the mayor shall be a fit person elected by the council bona fides. But the same lesson has been recently given still more from among the aldermen or councillors, or persons qualified to be forcibly in the Court of Appeal. This was in the case of Firbank's such'; and the 61st section that the election of mayor shall be Executors v. Humphreys and Others, Directors of the Charnwood the first business transacted' at the quarterly meeting on the 9th of Forest Railway Co. FIRBANK was the contractor for the railway, November, and that 'in case of equality of votes, the chairman, and was to be paid in the usual way, by instalments, upon proalthough not entitled to vote in the first instance, shall have the duction of the engineer's certificate. But the company, after the casting vote’; it being also provided, by rule 11 of schedule 2, as manner of companies, had no money to pay him with, and in this to council meetings generally, that ' in case of equality of votes difficulty they arranged with one Madison that debenture stock the chairman shall have a second or casting vote. Here, again, I should be issued to him, by means of which he was to finance the know of no common law rule to prevent a candidate for any office company and pay the contractor. At first FIRBANK received his from voting for himself, and yet I am met with the difficulty that instalments, but afterwards these ceased, and he pressed for an
This the directors the Legislature has presupposed the existence of such a rule in this arrangement with the company directly: case, or rather has presupposed that such a rule may operate in acceded to, and, at a board meeting at which they were all present, some instance or instances. I do not read the words “al. the company's seal was affixed to a contract by which they agreed though not entitled to vote in the first instance," as an to issue debentures to the amount of £18,000 in satisfaction of his express prohibition, but only as meaning "even where past claims. This issue, after that already made to MADISON, not entitled," &c. It may, perhaps, have been thought exceeded the whole amount of debentures allowed by the articles, by the draftsman that the rule of Reg. v. Owens (28 L. J. Q. B. but of the fact of such over-issue the directors were not aware. 316) that a mayor cannot return himself as councillor, would apply There were thus only two points in the case--an actual over-issue to the case of a councillor_voting for himself as mayor, and of debentures and ignorance on the part of the directors. They declaring his own election. But I cannot think that it does, and a tried to say that they did not know what was done at the meeting, misrecital does not alter the law (see Maxwell on Statutes, p. 381, but this the court would not listen to. Lord Esner, M.R., in his citing Reg. v. Haughton, 1 E. & B. 501), and it would have been judgment, treated the matter as a question simply of agency. The easy for the Legislature to deprive the candidate of his original vote by directors had, in fact, held out that they were authorized to express words if that had been intended. On the whole, therefore, issue debentures on behalf of the company, their principal, and I think, though with hesitation, that the mayor has an original as well inasmuch as FIRBANK, relying on this representation, had suffered as a casting vote at his own election. The question whether the mayor loss, they were bound to make good that loss to him. Here again, can vote for an alderman depends on section 60, which provides therefore, it is seen that the bona fides of a director will not that an outgoing alderman, although mayor-elect, shall not vote, help him if he gives his assent to transactions which are not and that the chairman, although, as an outgoing alderman or authorized by the constitution of his company. Now that the otherwise, not entitled to vote in the first instance, shall have the formation of companies has taken a new turn, and is going on casting vote.' I think that the probibition of an outgoing alderman with revived vigour, the enforcement of this principle may not from voting, although mayor-elect,' shews pretty conclusively be out of place. that the mayor has an original vote in all ordinary cases, and the section expressly provides for the casting vote. To the words or otherwise' in section 60 I cannot attach any meaning, and can only suggest that they were inserted ex abundanti cautela."
CAN A CORPORATION BE SUED FOR MALICIOUS
In the recent case of Abrath v. North-Eastern Railway Co. (11 THE DOCTRINE laid down by Lord Romilly in Re Brighton App. Cas. 250), Lord Bramwell went somewhat out of his way to Brewery Co., Hunt's case (16 W. R. 472), that where directors express, in the very strongest terms, his opinion that an action for of a company “have acted bona fide, and intended to do what was a malicious prosecution will not lie against a corporation, mainly on right and what they considered best for the interests of the com- the ground that a corporation is incapable of malice or motive. pany," the court " could not visit them with the consequences of The remainder of the learned lords present, however, declined to a mere error of judgment,” is misleading unless it is read in con- express any opinion on the point, seeing that it was not really, *nection with the rule that directors are bound to use the same raised by the case, and had not been argued. It is a curious and amount of prudence which, in the same circumstances, they would somewhat interesting point. We should feel great diffidence in exercise it acting on their own behalf (Overend, Gurney, Š Co. v. entertaining an opinion contrary to that expressed by so learned Gill, 5 H. L. 480, 494). Two cases recently decided ought to bring and weighty an authority as Lord Bramwell; but, apart from the home to directors the danger they run in 'not following carefully question whether his conclusion is correct, we must say that the the transactions of the company, and entering into the details of main piece of reasoning by which he enforces it, and for which he each one as though it related to their own private business. The claims that it is demonstrative, does not seem to us so absolutely first is Re The Oxford Building and Investment Society, decided conclusive. It is very logical and very neat ; but we believe it to by Mr. Justice Kayo (ante, p. 46), and here the directors, being be an example of that kind of scholastic reasoning which from time treated as quasi-trustees of the capital of the company, were held out of mind has occasionally misled English lawyers. liable to repay dividends which had been improperly paid out Shortly summed up, the steps of the argument appear to be substanof capital One of the articles of association provided that tially these. Malice is an essential element in an action for malicious no dividends should be payable except out of realized profits prosecution ; a corporation, being a mere legal entity or abstraction arising from the business of the company. The facts will be witnout a mind, cannot feel malice, ergo a corporation cannot be found stated in the report, and it is sufficient to say that, as to liable for a malicious prosecution. It seems to us that this arguthe plea that the directors had acted bonâ fide, Mr. Justice ment is quite independent of the question whether a prosecution Kay followed the late Master of the Rolls in denying that the maliciously instituted by officials or servants can be within the point could arise (National Funds_Assurance Co., 27 W. R. scope of their authority or employment. Though Lord Bramwell 302, 10 Ch. D. 128). In that case JESSEL, M.R., said that when does, to some extent, mix up the two questions together, it seems a man, with all the circumstances before him, nevertheless did, in to us that that is quite a different point. The main line of his fact, misapply money, he could not be heard to say that he had no reasoning, as it seems to us, depends on the two propositions that fraudulent intention. In the recent case the directors had the malice is essential, and a corporation cannot feel malice. At first articles of association before them, and as to the meaning of sight this chain of reasoning appears to constitute a most inex“ realized profits” no man of business could be in doubt. If, pugnable position ; but, strong as it may look at first sight, when then, they chose to pay dividends on the chance of their being we go beyond the mere words of the propositions, and come to conrealized, this was at their own risk, and, when the company was sider a little the realities of the case, we feel some doubt whether brought to ruin, they were bound to answer for the breach of it is quite so strong as it looks. trust and make good the capital which had been paid away in the shape of dividends. This is enough by itself to shew the extreme (tial element of an action for a 'malicious prosecution — no
To take the first proposition-viz., that malice is an essen
doubt in many cases it has been said that malice on the happens in the case of an individual prosecutor. A man receives
furiously while driving the carriage of the employer, it is as if the One of the observations which Lord Bramwell makes ap- employer did it himself. If it is within the scope of directors' pears to us to suggest some rather material considerations which functions as between themselves and a company to order a prosetend in the direction opposite to his conclusion. He says, " it cution, we do not see that the fact of the malicious motive makes it been prosecuted and improperly prosecuted.' "That is to say, the must be imputed to the company. The real question seems to be corporation is innocent but its officers are guilty. But the same thing whether the shareholders, who reap the benefit of the directors'
90 action in acting for the company, must not also take the burthen land, and his title thereto.” Thus the creditor can still take only of responsibility for the mode in which they so act. We cannot what belongs to his debtor (see ante, pp. 4, 42). “Of course only help thinking that there are passages in his judgment which shew the debtor's interest in the land can be sold; and if any third that Lord Bramwell's mind has unconsciously been warped in this party has an equitable claim upon the land, he is not bound by the case by consideration of the scandalous manner in which juries order ;" per James, L.J. (Re Ogilvie, 20 W. R. 226, 7 Ch. 174; often find verdicts against companies which they would not find 41 L. J. Ch. 336). against private individuals. But this has not really any bearing Section 5 provides that where it shall appear that any other on the theoretical aspect of the question.
judgment debt is a charge on such land, notice of the order for sale shall be served on the creditor entitled to the benefit of such charge, whether prior or subsequent to the charge of the petitioner.
This section contemplates the existence of several judgments conCONCERNING SEARCHES.
stituting charges on the lands; and “if there were no other mode (XVII.) JUDGMENTS,
of delivery except by the sheriff,” and if there could be only one II. THE MODERN Law oF JUDGMENTS (continued).
return, “ there would then be a difficulty as to the existence of
prior or subsequent charges, because only one charge would be 27 f. 28 Vict. c. 112.—This statute (reciting that it is desirable to possible. But if the charge can be perfected by the Court of assimilate the law affecting freehold, copyhold, and leasehold Chancery in case of a legal obstruction, that difficulty is removed” estates to that affecting purely personal estates in respect of | (per Lord Selborne, C.: Hatton v. Haywood, 9 Ch. 233). Section 6 future judgments) enacts (section 1) that no judgment entered provides that every person claiming any interest in such land up after the 29th of July, 1864, “shall affect any of
through or under the debtor by any means subsequent to the whatever tenure, until such land shall have been actually de, delivery of such land in execution, shall be bound by every order livered in execution by virtue of a writ of elegit, or other lawful for sale under section 4, and the proceedings consequent thereon. authority, in pursuance of such judgment.”. By section 2 "judg- As was pointed out by Giffard, V.C. (Guest v. Cowbridge Railway ment” is defined as in seption 5 of 23 & 24 Vict. c. 38 (suprà), Co., 17 W. R. 7, 6 Eq. 619), the old law was altered, by 1 and “ land” includes all hereditarents, corporeal or incorporeal, & 2 Vict. c. 110, in favour of judgment creditors, by giving them or any interest therein. By section 3 every writ or other process very extended rights and remedies as against lands; and then by of execution ” by virtue whereof any land shall have been actually the subsequent statutes, noticed above, those rights were gradually delivered in execution is to be registered in the name of the judg-contracted and cut down. Section 1 of 27 & 28 Vict. c. 112, ment debtor," and no other or prior registration of such judgment "must mean that no judgment creditor can have any right of any shall be or be deemed necessary for any purpose.” Probably, there. kind in the shape of å lien on the land until he has got a return fore, the word “ registered," in section 2, defining "judgment” as from the sheriff. That is pretty clear from the 3rd section" including registered decrees, &c., may be disregarded. The Act does (which requires no registration of the judgment itself) whereas, not require any such prior registration of the writ of execution as under 1 & 2 Vict. c. 110, registration was necessary to give a lien is required in cases under the Act of 1860 (per Cotton L.J., in Re (per Giffard, V.C., Guest v. Cowbridge Railway Co., ubi sup.); Pope, 34 W. R. 693); and, though it does not profess to repeal the
As was observed by the author of a paper on Searches read at the last-mentioned Act, it does, in effect, make it obsolete (per last meeting of the Incorporated Law Society (see 30 SOLICITORS' Lindley, L.J., Ibid.).
JOURNAL, p. 804), the framers of the Act (27 & 28 Vict. c. 112) appear The words of the íst section are not to be confined to land capable of to have assumed that actual delivery in execution is a patent fact, delivery at law by the sheriff (per Lord Selborne, C., Hatton v. necessarily known to or ascertainable by all the world, and not to Haywood, 9 Ch. 233); and the statute leaves untouched all rights have contemplated the possibility of a purchase without notice after given by earlier Acts, except so far as it expressly takes them completed execution, the case which happened in Re Pope (34 W. R. away, so that there is still an inchoate right to a charge under 654, 693, 55 L. T. 268, 369; and, in C.A. only, 55 L. J. Q. B. 1 & 2 Vict. c. 110, s. 13 (ante, p. 42) though it must now be 522). We have seen (ante, p. 58) that, by 2 & 3 Vict. c. 11, a perfected by actual delivery in execution (9 Ch. 234 ; 1 Dan. purchaser without notice of a judgment, though registered before Ch. Pr., 6th ed., 931). The creditor can come into equity the contract, was protected against the operation of 1 & 2 Vict. where there is an impediment to. legal execution he
c. 110, but left exposed to the remedies given by the old law, could before 1 & 2 Vict. c. 110 (ante, p. 24), and the order under which a moiety of certain real estates could be extended, of the court, whether in form it be a writ of sequestration (Re against a purchaser without notice, upon a judgment entered Rush, 10 Eq. 442, L. J. Ch. 759) or the appointment of a receiver, will be a delivery in execution by lawful authority within 3 and docketed before the contract. In Re Pope (34 W. R.
Divisional Court appear to have expressed an this Act (Hatton v. Haywood, ubi sup.). It was said (per Day and Wills, JJ.) in Re Pope (34 W. R. a completed execution, and refers only to cases in which the
opinion that the modern legislation leaves untouched the effect of 654), that the word - affect” in this Act must mean “create creditor seeks to enforce a charge on the lands, so that, if the an equitable charge,” and that the word appears for the first time creditor had actually seized the land in execution—whether under in 1 & 2 Vict. c. 110 ; sed qu. for the same word is used in the an elegit or an order appointing a receiver-a purchaser without Docket Act (ante, p. 25) of Wm. and M. which had reference to notice would be bound, though the judgment was unregistered, so legal execution only. The result of assimilating the law with respect to real estate to land and to satisfy his judgment debt out of the rents and profits,
far as regards the right of the creditor to hold possession of the that relating to personal estate is that “where there is no execution though he would not ħave any charge, under section 13 of 1 & 2 there is no lien. The main purpose and object of the Act was to Vict. c. 110, unless the judgment had been registered. It is not facilitate the transfer of land by rendering it unnecessary to make quite clear from the reports that the learned judges in terms searches for judgments on the purchase of land, and the law was limited the remark as to the necessity of registering the judgment; altered step by step with a view to giving purchasers a good title in order to give a charge, to cases prior to 27 & 28 Vict. c. 112 ; as against judgments" (per Hall, V.C., Anglo-Italian Bank v. Davies, 27 W. R. 3, 9 ch. D. 275). As to what amounts to as we have pointed out, section 3 of that Act expressly says that
but it is submitted that they must have intended so to limit it, for, actual delivery in execution at law, see 30 SOLICITORS' Journal, no other or prior registration of the judgment shall be, or be 725, and in equity, Ibid. 742.
deemed, necessary for any purpose. Section 4 of the Act enables a
It is creditor to whom "
prehended, howof his debtor” has been delivered in execution, and who has regis- must be both a registration of the judgment itself within
ever, that, in cases coming within 23 & 24 Vict. c. 38, there tered his "writ or other process of execution," to obtain five years before the contract and also registration of a writ of " forthwith " upon petition a summary order from the Chan- execution within three months before completion, in order to found cery Division for sale of “his debtor's interest in such land," without waiting for the expiration of a year, as was required in L.J., in Re Pope (34 W. R. 693, 55 L. T. 369) :-"Under the
a right to a charge under 1 & 2 Vict. c. 110, s. 13: see per Cotton, proceeding under 1 & 2 Vict. c. 110, s. 13 (see, as to the Acts previously [to 23 & 24 Vict. c. 38] in force, a judgment did practice, Seton, 1137 foll.). as to the nature and particulars of the debtor's interest in such c. 38 added that execution must be issued and registered ;
The court is to direct inquiries not affect the land without registration. The 23 & 24 Vict.
and it provided that it should not affect a purchaser unless The latest cases appear to be inserted, and we find a reference to the execution was executed within three months of registration. important case of Reg. v. Kettle (55 L. J. Q. B. 470) in the index. That was a further protection to purchasers. But registration was We regret, however, that no more than two of the four current sets necessary, for not only was land not affected where there was no of the execution of this part of the work, we may refer to the treatment
of reports are, so far as we have observed, referred to. As a good sample execution of the judgment or of the writ, but where there was no of appeals, and we may congratulate the editor on having, in a note (p. registration of the judgment or writ. Then 27 & 28 Vict. c. 112 428), successfully predicted the judicial construction of the statutes was still more in favour of purchasers. It provided that no judg- and rules which was arrived at in Reg. v. Kettle. ment or writ should affect the land until it was delivered in
Thirdly, as to the special practice under the numerous Acts passed execution—taking away the incumbrance of a judgment or writ since 1874, we think that the Employers' Liability Act is extremely of execution not executed. When the land was actually delivered well treated. There is first a summary of the general scope of the in execution, did the Act require registration of the writ? I Act, then follows an account of the liability for personal injuries think not. The registration required by the previous Act was apart from the Act, and then the clauses of tắe Act and the decisions where land was to be affected by a judgment or writ not executed; the importance of Moyle v. Jenkins (L. R. 8 Q. B. D: 116) and of
upon them. These decisions are carefully given, though, looking to but under the later Act the land must be actually delivered in Keen v. Millwall Dock Co. (L. R. 8 Q. B. D. 482), we think that these execution, and registration was then not necessary” (ie, unless two cases might have been treated at a little more length. In dealing the creditor desires to petition for a sale under section 4).
with the Agricultural Holdings Act the editor has not been so In a recent case before Bacon, V.C. (Hewett v. Murray, 54 successful. There is no introduction or comment worthy of the L. J. Ch. 572, 52 L. T. 380), where a judgment creditor in an name, and many sections of the Act are printed, whereas the action for equitable execution (upon a judgment recovered in greater number of them might have been abstracted only, and many February, 1885) obtained the appointment of receiver for the pur- omitted altogether, so as to bring into their due prominence the pose of creating a charge upon the debtor's property, subject to powers of the county court on appeal. A Queen's printer's copy of prior incumbrances, but not for the purpose of entering into pos- of it which is given. Taking another instance of special practice, we
the Act would serve the reader's purpose nearly as well as the reprint session or receiving the rents and profits, the receiver was not are not a little surprised to find that the Parliamentary Elections required to give security, the plaintiff and the receiver undertaking (Returning Officers) Act of 1886 is quite unnoticed in connection not to act without the leave of the court.
with its parent Act of 1875, nor is there any mention of Reg. v. By R. S.C., L., 15a (R. S. C., Oct., 1884, r. 12), on applications Judge of Lambeth County Court (17 Q. B. D. 96). for appointment of a receiver by way of equitable execution, the
The index is very long, occupying 140 pages, and we are glad to
We have not been court or a judge is to have regard to the amount of the debt be able to add that it is an extremely good one. claimed, to the amount which may probably be obtained by the able to detect a single omission or defect in it, excert under the head receiver, and to the probable costs of his appointment, and may have been useful to give a reference to those selected.
of “Form,” where, as only a selection of forms is printed, it might direct inquiries on these or other matters.
As to mechanical arrangements, the book is well and clearly
at-Law. THIRD EDITION. Oxford: Clarendon Press.
Professor Holland has suggested, on page 7 of this work, a REVIEWS.
parallel between “Jurisprudence" and "Abstract Grammar, COUNTY COURTS.
which exception has been, he tells us, taken by Professor Pollock.
We are inclined to think that the parallel is an extremely just one; THE PRACTICE OF THE COUNTY COURTS. By J. E. Davis, Barrister- and that an important lesson may be learnt from it-namely, that at-Law. Sixth Edition. Edited by S. M. RHODES, Barrister- there is very little use in trying to teach jurisprudence to anyone at-Law. Butterworths.
who is not already pretty well acquainted with at least one system of Only three years elapsed between the publication of the fourth law. No one, we take it, would venture to learn abstract grammar and fifth editions of this work, whereas twelve years have elapsed until he had already acquired a familiarity with the grammar of at least between the publication of the fifth and that of the present edition. one language ; if he did, he would be beginning at the wrong end. And Since 1874 radical changes have been made in general county court
we think that the same objection upplies to attempting to get a practice by the County Courts Act of 1875 and the successive con- knowledge of so artificial an abstraction as jurisprudence, without solidations of the Rules in 1875 and 1886, wbile numerous Acts-of having first made acquaintance with some of the sources from which which the Parliamentary Elections (Returning Officers) Acts, 1875 and it is abstracted. For anyone, however, who possesses this pre1886, the Employers and Workmen Act, 1880, and the Agricultural liminary knowledge, there is much to be gained by its study, and we Holdings Act, 1883, are the most important-have thrown into the do not know any better guide to that study than the book now before county courts additional business in connection with special subjects. us; indeed the fact that it has within so short a time from its first The present edition, therefore, contains so much new matter that it publication reached a third edition, is a sufficient indication that it is necessary to examine it with more than ordinary minuteness and has proved a valuble addition to our legal literature. The present
edition contains but few and unimportant alterations from its preAnd, first, with regard to the new rules. They are all inserted, decessor; such as there are, however, are improvements. The chapbut how? We read in the preface that “ generally the very words ter on the “ Analysis of a Right” has been re-arranged and are given in the text,” but that “to give the ipsissima verba of every expanded; some passages wbich in the former editions were comthan the price of official copies," so « with the aid of tables" (which discussion on the necessity of consensus to a contract is considerably volume, while portable, will prove sufficient for county court prac- being supported with considerable acumen. We must confess, however,
• In the vast that we are by no means convinced that Mr. Holland is right, so far majority of cases, as will be seen from the differently-printed pages as regards English law, on this point, though the space at our disfy the table of rules, the rules are practically printed in posal does not permit us to enter into any discussion of so complex full or the substantial arts given, and the exceptions (see a question. instances at pp. 184, 641, and 684) are so few that we cannot help thinking that the better course would have been to make no
LOCAL BOARD ELECTIONS. exceptions at all. There is no table of forms, and very few forms are printed in respect of facility of reference it would have been THE LOCAL BOARD ELECTION MANUAL. By the late W. G. LUMLEY, much better to print the number of each rule and form in the text
Q.C. FOURTH EDITION. By ALEXANDER MACMORRAN, Barristerinstead of in foot-notes.
at-law. Shaw & Sons. Secondly, as to the general practice, we are glad to find that the The application of the Corrupt Practices Act, 1884, to local board fame care and exhaustiveness which have always distinguished the elections has made a further edition of this work, of which the last a little too long, especially where extracts from judgments are given morran has added a lengthy chapter on the Act of 1881, and another
a of the
on that part of the Municipal Corporations Act, 1882, which is applied which shonld be applied to some of the provisions of the Remunerato the local board elections. These chapters appear to be accurate tion Order. Under clause 6 of the Order, the solicitor's “writand sufficiently full; but it would have been better that where, as ing under his hand" must be “communicated to the client.” Who, is frequently the case, the very words of a statute are interspersed then, for the purposes of the order, is the client of a solicitor in the amongst editorial remarks, those words should have been printed preparation of a lease ? The answer is to be found in Schedule I., between inverted commas.
Part 2; Lessor's solicitor for preparing, settling, and completing lease and counterpart.” This interpretation is, we think, con
sistent with section 1 of the Act, inasmuch as the lessor is the EXECUTIVE OFFICERS.
person liable for costs in the first instance to the solicitor, if the THE POWERS, DUTIES, AND LIABILITIES OF EXECUTIVE OFFICERS AS
latter has not been expressly retained by the lessee (see Grissell v. BETWEEN THOSE OFFICERS AND THE PUBLIC. By A. W. CHASTER, Robinson, 3 Bing. N. C. 10, and Bakerov. Meryweather, 2 C. & K. Barrister-at-Law. William Clowes & Sons, Limited.
737).-ED. S. J.] Mr. Chaster has discovered a new subject and has treated it with fair accuracy and completeness, though in the old fashioned style of digest of cases, and setting out in full of sections of statutes. He col
MUNICIPAL CORPORATIONS ACT, 1882. lects within some 300 pages the statutes and cases bearing on the relations to the public of sheriffs, high bailiffs, bailiffs, revenue
[To the Editor of the Solicitors' Journal.} officers, police, gaolers, inspectors of factories, explosives, nuisances,
Sir,– Will you or any of your readers kindly inform meweights and measures, and other officers too numerous to mention. (1) Whether a candidate for the mayoralty, being the outgoing We have failed to find much expression of independent opinion mayor, can preside at his own election, and, if so, whether he may upon the cases. The statutes are, we think, given at too great give himself an original vote, and, in case of equality, a casting length; an abstract of them would, in most cases, have supplied all vote also ? that is wanted and usefully decreased the bulk of the book. The (2) Whether the mayor can give an original vote, and, in case of index, though the sub-titles are alphabetical, is rather short and equality, a casting vote also, for an alderman ? SOLICITOR. meagre, and only one set of contemporary reports is ever referred to.
CASES OF THE WEEK. a short introduction and “observations” upon the recent Act,
REEVES v. FOWLE-C.A. No. 1, 1st December. and followed by a good index. The observations furnish a useful Practice-County Court – JUDGMENT SUMMONS COMMITTAL ORDERcommentary on the Act of last session and draw attention to the
DIRECTION THAT WARRANT SHALL NOT Issue IF CERTAIN INSTALMENTS ARE points to which evidence should be directed in the procedure before the
PAID-VALIDITY-DEBTORS' Act, 1869 (32 & 33 Vict. c. 62), s. 5. Commissioners. The Acts, however, are printed almost without annotation, even by way of cross reference, and Mr. Bolton has, in at least This was an appeal by the judge of the Brompton County Court from one instance, printed a string of repealed sections, being sections directed to the judge and the plaintiff, prohibiting them from further
an order of the Queen's Bench Division granting a writ of prohibition, 4-9 of the Act of 1836 (6 & 7 Will. 4, c. 71).
proceeding on and putting in force an order of commitment, dated the 4th of March, 1886, against the defendant in an action in the county court. On the 7th of January, 1886, judgment was given for the plaintiff in the action for £57 2s. 2d. inclusive of costs, and the defendant was ordered to pay it by two instalments, £20 on the 21st of January and the
balance on the 21st of February. The defendant having made default in CORRESPONDENCE.
payment of the first instalment, a judgment summons was taken out by THE REMUNERATION ORDER-LEASES.
the plaintiff, and on it the county court judge on the 4th of March made
an order_as follows :-.“ Commitment ten days, suspended fourteen [To the Editor of the Solicitors' Journal.]
days.” This was entered in the Commitment Summors Book. At the Sir,-Most members of the profession will, I think, agree with the
same time the judge gave a direction to the registrar that the warrant remarks in your last number on the case of Re Allen, reported in was not to issue if the defendant paid £4 a month. This direction was
not entered in the court book. The defendant paid two of these £4 the same number under“ Cases Affecting Solicitors,” but I venture instalments, but failed to pay the third instalment, and as the warrant to ask whether you are right in taking it so entirely for granted, as for commitment was going to be issued, the defendant applied for and you appear to do, that, where a lessee pays the entire cost of his obtained the above writ for a prohibition, on the ground that the order of lease, the lessor's solicitor, who prepares it, can by notice to his own the 4th of March was in excess of jurisdiction. The county court judge client-i.e., the lessor, and behind the back of the lessee, elect that appealed. When the registrar was asked by the defendant's solicitor his remuneration for the lease shall not be according to the prescribed what the order of the 4th of March was, he replied as follows :-"Order scale. This seems to have been so assumed in Re Allen, and it made 4th of March, 1886-£4 to be paid 18th of March, 1886, and each appears that the Council of the Incorporated Law Society are of the succeeding calendar month. If not so paid warrant of commitment same opinion (see their Digest, &c., on the Remuneration Act, p. 17, might be issued.” par. 58); but I have never myself been able to acquiesce in this judges of the Superior Court, sitting at chambers, upon a summons to
The Court dismissed the appeal. Lord Esher, M.R., said that the construction of the General Order, and one would have thought, commit a debtor under section 5 of the Debtor's Act, 1869, could either with all deference, that the common-sense view was the right oneviz., that the notice must be given to the person called upon to had means to pay, or might make a new order for payment by instal
make an immediate order of committal, if it were shewn that the debtor pay. Certainly, this seems to me the only view which gives full ments; but they could not make an order for payment by instalments, effect to the interpretation of the word “client” contained in and at the same time make a commitment order if any of those instalsection 1 of the Remuneration Act, which must, I take it, be con ments were not paid in the future. That had been decided by Willes, sidered as part of the General Order (see especially the last definition J., in Re The Debtors' Act (22 L. T. N. S. 666), and followed by all the of “client” in such clause).
judges. The county court judges exercised their jurisdiction under the If your construction is the right one-viz., that “client” means same statute, and subject to the same limitations as the judges of the nothing to prevent the lessor requiring the solicitor (under clause 5) must have meant it to be an order, and it was acted on as such. There exclusively the person originally instructing the solicitor, there is superior court. It was clear from the letter of the registrar of the 18th of to carry through the business of the lease “by special exertion in an exceptionally short space of time, and, should he do so, he would, in March for payment of the debt and instalments, and at the same time
fore the county court judge had, in effect, made an order on the 4th of your view, be entitled to additional remuneration, not from the lessor, made an order for commitment if any of those future instalments were but from the lessee, which would be absurd. Personally, I have as yet had no occasion to consider the point in for fourteen days was within the inherent jurisdiction of the court, but
not paid. The order that the commitment order should be suspended actual practice, for, so far as my experience goes, the scale has been the order of commitment on failure to pay any one of the future instal. loyally accepted and acted upon both by lessors and lessees, but, as ments was in excess of the jurisdiction of the court, and therefore the question has—I know from others- occasionally been raised, I illegal. The effect of allowing it might be that a debtor, after paying venture to trouble you with these few remarks, should you think fit two or three of the instalments, might, from some unforeseen calamity, be to insert them in your paper.
E. E. L. unable to pay the next instalment, when he would be committed to 29th November.
prison at once, without having an opportunity of explaining his case, [We agree with our correspondent as to the common-sense view instalment in arrear.
The order to commit could only be made upon failure to pay each of the matter; but, unfortunately, common sense is the last test Lindley and Lopes, L.JJ., concurred. -COUNSEL, 'Sir E. Clarke, S.G.,
The prohibition, therefore, was rightly issued.