Page images
PDF
EPUB

Solicitors' Journal.

.......

.. 210

....... 213

..... 214

..... 228

future more onerous. Reference is made in the circular to the jurisdiction of the director to entertain applicacations for authority to incur certain special costs in prosecutions of importance or difficulty, and to the

desirability of communications being made to the LONDON, JANUARY 17, 1880.

director in cases where compounding a prosecution is suspected, but we find no reference to the function

formerly stated to be intended to be exercised by the CONTENTS.

director of " advising clerks to justices and other persons

concerned in any criminal proceeding.” CURREXT TOPICS:Stamps on Orders Appointing New Trustees and Vesting Property in Them

207 The Directne of Pablic Prosecutions

207 Why is it that the learned Master of the Rolls alone Separate Lists of Witness Causes ......."

207 Description in Porticulars of Bale of an Underlease as a Lease.. 207

among the chancery judges of first instance has a Copyright in Sculpture..... ............................ 208 separate list for witness causes ?

One would suppose Vice-Chancellor Hall.......

203

that the advantages of such a list, when combined with LEADERS :Tontines and the Lottery Acts ........

208 the setting apart of certain days for taking the cases Costs since the Judicature Acts..........

in the witness list, are obvious. It enables practitioners GENERAL CORRESPONDENCK.......

211

to calculate more nearly the time at which their CASES OF THE WEEK :E-daile v. Visser

211 witnesses will be required to be in attendance, Dieks v. Brooks ...........

212

while the alternation of days for non-witness causes Blyth, In re...

212 Macquaid v. Robson

prevents inconvenient delay in hearing those causes. The

......................... 212 Rensbaw v. Renshaw

.................. 212 days at present fixed for witness causes at the Rolls Sreegles, Re (dec-ased), Steggles v. Haslam .................. 212 Webster v. British Empire Assurance Company

2:3

are not, perhaps, the most convenient that might be Rolls v. Vestry of St. George..........

adopted, but the separate list is an undoubted boon to Wise v. Piper

.................... 213 those who have cases in that court. Such a list Mundy v. Asprey.............................................. 213 OBITUARY. ............................................. 214

might well be adopted by all the other chancery APPOINTMENTS, ETC.................

judges. One consequence of the want of such COMPANIES

215

a list is to encourage practitioners to apply to the judge SOCIETIES.........

................................... 215 LAW STUDENT'S JOURNAL ....................................... 215

to fix a special day for any witness cause which is exNEW ORDERS, &C... .................................... 216

pected to be heavy; and the court of Vice-Chancellor CREDITORS' CLAIMS ............................................ 217 COURT PAPERS ................................................ 218

Bacon is an instance of the difficulties connected with LEGAL NEWS ..........

................................. 224 this fixing of days for hearing particular causes. To LONDON GAZSTTRS, &c., &c. ..

224

the court paper for Wednesday last there was appended

a supplementary list of twelve witness causes, all of which CASES REPORTED IN THE WEEKLY REPORTER.

had been fixed for hearing by the Vice-Chancellor on Cambervell Benefit Building Society, The v Holloway (Ch.Div. MR.)..

222

days long since passed, and which the Vice-Chancellor Chorlton v. Dickie (Ch.Div. Fry, J.)...

has now to hear consecutively in priority to all the Danby, Appellant, v Honter, Respondent (Q.B.Div)

............ 228 Davies v. Williams (Ch.Div. V.C.B.).......

other causes in the list. Finch and anocber v. Great Western Railway Company (Ex.Div) 229 Gee, In re. Laming v. Gee (App.)..

217 Hemming, Ex parte. In re Chatterton (App.).

218 Lsx and another v. Mayor and Corporation of Darlington (App.).. 221 THERE WILL BE FOUND in this week's issue of tbe Long v. Crossley (Ch.Div. Fry, J.)

WEEKLY REPORTER a case (Camberwell Benefit Building Newbig gin-by-i he-Sea Gas Company v. Armstrong (App.)..... 217 Qasen, The, v. Martin (C.C.R)....

232 Society v. Holloway) in which the learned Master of the Thompson 7. Marshall (App.)

....................... 220

Roils (overruling the opinion of a conveyancing counsel Tacker, Ex parte. In re Tucher (App.) ........................ 219 Webb v. East (ex.Div.)

to the court) has decided that the description in particu

...................... 229 Wilkins v. Jodrell (Ch.Div. V.C.H.).

lars of sale of an underlease as a lease is not necessarily a misdescription. He says: "The word 'lease' in law

is a well-known legal term of well-defined import. CURRENT TOPICS.

No lawyer has ever suggested that the title of the

lessor makes any difference in the description of FURTHER FACILITIES have been afforded to the profes- freeholder, or by a copyholder with the licence of the

the instrument, whether the lease is granted by a sion for obtaining the starnps required on orders for appointing, and vesting property in, trustees.

lord, or by a man who himself is a leaseholder. It beir g

These stamps, which are Inland Revenue stamps, as dis

well granted for a term of years is called a lease. lu tinguished from Judicature stamps, and have hitherto

is quite true that where the grantor of the lease holds for only been obtainable at Somerset House, are

a term, the second instrument is called either an underimpressed in the Stamp Office in the Royal Courts of

lease or a derivative lease, but it is still a lease, and Justice.

consequently when a man sells a thing by its known and proper legal description, it does not appear to me

that he can be charged with misrepresentation. IE THE DIRECTOR OF PUBLIC PROSECUTIONS has not yet he says, 'I sell you a house held under a lease been provided with an office, but he has obtained an for a term of twenty-one years,” every word of that assistant, Mr. Ernest Algernon Sparks--a choice, we is true, although the lessor may hold under a lease believe, regarded by the profession with considerably himself.

Per se, calling a thing a lease less satisfaction than that of the director. The circular which is a lease is not necessarily a misdescription." just issued by the Home Secretary exactly carries out And then the learned judge hunts about the conditions that which we have always indicated as being the for indications that the thing to be sold was an underlease intention of the framers of the Act. The present system and not a lease; and finds such indications in the lease of conducting prosecutions remains in outward appear itself, which under the conditions was to be produced at: ance most untouched. If the director decides to take the time of sale and might in the meantime be inspected. up a osecution, he will conduct it by the Treasury “Superior landlords” were spoken of in the lease. Then Solicitor, or his local agent, or by some other person again, in one condition it was stated that “no objection appointed by the director.” The Treasury Solicitor will whatever shall be made that there is an outstandbecome, however, the mere agent of the director, and ing term of three days vested in the mortgagor.” This the local agents, who have hitherto worked on the half the Master of the Rolls triumphantly seized upon as a costs system, will probably find their duties for the distinct statement that what was sold was an underleise.

... 22

226

...... 221

now

[ocr errors]

Therefore, he says, the purchas er could not have relied on the word 'lease' in the particulars to show that what TONTINES AND THE LOTTERY ACTS. he was buying was an original lease." With great The pending promotion of the National Opera Company deference we think that the question is not whether the by means of a tontine, “the nominated lives not to be word “lease” is a general word which may not inappro- less than sixty years of age,” has caused the question priately be applied alike to an under-lease and an

to be raised whether a tontine is illegal under the original lease; the question is whether the description Lottery Acts, and it has been stated on behalf of “lease" in the particulars would convey to an intend

the infant company that the opinion of eminent counsel ing purchaser a correct idea as to the nature of the has been taken, and that that opinion was to the effect that property to be sold. We should say unhesitatingly that the proposed tontine was not illegal under those Acts. it would not; it would convey to the ordinary purchaser Looking to the confident dictum of Jessel, M.R., in the notion that there was no third person between him Sykes v. Beadon (27 W. R. 464, L. R. 4 Ch. D. 170), and the freeholder capable of committing a breach of

to which we will presently refer more at length, that covenant which might bring the proviso for re-entry Government Securities Trust was illegal under the into effect. If the description in the particulars was

Acts, we are by no means surprised that the question likely to mislead the purchaser, the case of Torrance v. should have been raised, and considering its importance Bolton (21 W. R. 134, L. R. 8 Ch. 118) shows that the

as bearing upon other speculations more common than burden of proof is cast on the vendor to show that the tontines (which are all but extinct), we propose to purchaser was not, in fact, misled by what he had read

examine briefly the history and scope of the Lottery in the particulars; and an ambiguous explanation Acts. of the meaning in the conditions will not do. “It

These Acts are nine in number, the earliest being was not sufficient,” said Lord Justice James, “to 10 & 11 Will. 3, c. 17 (10 Will. 3, c. 23, in the Revised read in the midst of a long paper

of condi

Statutes), “ An Act for Suppressing of Lotteries," tions a condition

which merely told him and the latest being 8 & 9 Vict. c. 74, which provides that the property was subject to several mortgages, that penalties for advertising lotteries are to go to the

as to which it might very well happen, as in Crown, and be sued for in the name of the Attorneythis case it did happen, that it failed to convey to the General only. purchaser's mind this information, which ought to have

It is clear from the perusal of these Acts, that, not. been conveyed to him." We respectfully submit that it is withstanding their preambles (see, e.g., 42 Geo. 3, c. 119, anreasonable to expect a purchaser to scan the condi

s. 1) protesting against the "great impoverishment and tions of sale with the eyes of a practised lawyer in order utter ruin, &c., of families” by lotteries, their main object to correct his notions acquired from the particulars.

was not so much to prevent “ private" lotteries, as to protect the State lotteries which were established from time to time, from about the year 1710, when £1,500,000

was raised by 9 Anne, c. 6, " by way of a lottery for the A DECISION recently pronounced by a French court, public service” to 1824, after which year (see 4 Geo. 4, c. and reported in a French legal periodical, protecting | 60, 8. 19) they were finally discontinued. The practice from photographic infringement the copyright in a statue

appears to have been for private persons to keep what which the sculptor had presented to a church, may they called “insurance offices,” or “ little goes " (see 42 serve to draw attention to a defect in one branch of our

Geo. 3, c. 119, s. 2), at which the holder of a tickei in law of artistic copyright. As the law stands at present the Government lottery insured his chance of a success; in this country, does not appear that a sculptor whose and the legalisation of the Government “great goe," work is photographed for profit by another has any along with the prohibition of the private “ little goe remedy under the Sculpture Copyright Act. While the caused much diffculty in drafting, and much obscurity law of literary and dramatic copyright has been im

in the law. But although the amount of the penalty proved from time to time, that of sculpture copyright is remains obscure, the nature of the offence appears still regulated by the 54 Geo. 3, c. 56. By that Act an ex

pretty clear from 12 Geo. 2, c. 28. This statute enacts elusive right for fourteen years is conferred on persons (section 1) :who make, or cause to be made, any new and original sculpture, or model, or copy, or cast of the human

“If any person shall erect

any office, or place figure, or other subjects as set out in the Act, provided under the denomination of a sale of houses, land, advowsons, that the proprietor's name and the date are put on the presentations to livings, plate, jewels, ships, goods, or sculpture, model, copy, or cast, before the same is put other things, by way of lottery, or by lots, tickets, numbers, forth or published. But the 3rd section of the Act,

or figures ; . .. or shall expose to sale any houses, &c., or by by which persons who pirate the copyright work are made any game, method, or device whatsoever, depending

apon, or liable for the infringement, only speaks of a pirated copy

to be determined apon or by any lot or drawing, whether it

be out of a box, or wheel, or by cards or dice, or by any or pirated cast of the work, and makes no mention of machine, enginé, or device of chance of any kind whatsoreproductions by painting, engraving, or photographing. over, ... he shall forfeit and lose the sum of two hundred Sculptures may, no doubt, by the effect of the 6th section pounds.” of the Copyright of Designs Act of 1850, be registered ander that Act and the other Designs Acts at present in

It may be well to add that by 8 Geo. 1, c. 2, force-i.e., 5 & 6 Vict. c. 100; 6 & 7 Vict. c. 65; 13 &

s. 36, it had already been enacted that “every per14 Vict. c. 104; 21 & 22 Vict. c. 70; 24 & 25 Vict. c.

son who shall erect, &c., any office or place under the 73, and 38 & 39 Vict. c. 93 ; but it does not appear that denomination of sales of houses, &c., for the improveadvantage is often taken of this provision, and indeed ment of small sums of money, or shall sell, or expose to the remarkable dearth of reported cases on the subject sale any houses, &c., by way of lottery, or by lots, of sculpture copyright proves clearly enough that sculp- tickets, numbers, or figures, or shall make, print, &c., tors in this country do not find it worth their while to proposals, &c.; or shall deliver out tickets, &c., or shall protect their rights, but prefer to make their profit make, print, or publish, or cause to be made, printed, or once for all on the sale of their works.

published, any proposal or scheme of the like nature, under any denomination, name, or title whatsoever,' shall on conviction“ over and above any former penalties

inflicted by any former Act or Acts of Parliament made WE REGRET to learn that Vice-Chancellor Hall, who against any private or unlawful lotteries, forfeit the sum has been absent from the bench since the commencement of five hundred pounds,” &c. ; and by section 37 of the of the present sittings, has been suffering from a severe same Act, that "every person contributing unto any such attack of sciatica. It is hoped that his lordship may be sales, lotteries, proposals, or schemes aforesaid, shall able to resume his judicial duties next week.

forfeit double the sum" contributed.

.

The statute 12 Geo. 2, c. 28, goes on to provide for the prohibition of competition by private lotteries the application of the penalty-one-third to the informer with State lotteries—a scheme which merely provides and two-thirds to the poor, except in the city of Bath, for the distribution of property by the subscribers where the two-thirds are directed to "go and be applied amongst themselves, is not illegal. No office is kept for to and for the use and benefit of the poor residing within selling and nothing is sold. Against this contention the hospital or infirmary lately established for the use Allport v. Nutt (1 C. B. 989)--that "sweeps" on horse and benefit of poor persons resorting to the said city for races are illegal under the Acts—may no doubt be cited, the benefit of the mineral waters.” By 46 Geo. 3, c. 148, but we think that the cases are distinguishable on the 8. 59, it was directed that “all pecuniary penalties for ground that in a “sweep” nothing is acquired for disany offence against any law touching or concerning lot. tribution. In “trusts” and schemes of that kind, there teries shall go to the use of his Majesty," &c., and be sued is a bonâ fide acquisition of property by the subscribers for in the name of the Attorney-General only. But before the distribution by lot, which is incidental, not section 4 of 12 Geo. 2, c. 28, enacts that "every such essential, to the scheme, takes place. We are not sure, sale” by any game, lottery, machine, engine, or other however, whether the same argument would hold good of device whatsoever, depending upon or to be determined by those numerous loans, home or foreign, which capitalchance or lot, shall be void, and that all such houses,&c., ists were invited to subscribe by the temptation of being so sold "shall be forfeited to such person who shall sue repaid by drawings at a premium. for the same," and this right of the common informer to But is a tontine within the Acts ? A tontine is a the goods, &c., offered for sale by lot does not appear to scheme by which out of a number of persons the surbe extinguished by 46 Geo. 3, c. 148, s. 59. It may be vivor, or nominator of the longest liver, takes the whole added that 4 Geo. 4, c. 60, s. 67, directs notices to of a certain property which has been bought by the commit offenders for rogues and vagabonds, and subscriptions of all. The chance of human life, not the authorizes a private whipping to be inflicted.

chance of the lot, determines who is to be the for. If, therefore, the contention that tontines are illegal tunate person. Upon the best consideration we can under the Acts be correct, the whole property of the give to the Lottery Acts, we come to the conclu. National Opera Company appears to be forfeited to “any sion that a tontine is not within them. Unless there person who will sue for the same," and double the sub. be some mechanism or contrivance, whether of the scription of each shareholder in the same manner (with most simple or complex kind, brought into play, the or without whipping for a second offence, in accord Lottery Acts do not seem to apply. Nor do we think, ance with 4 Geo. 4, c. 60), unless the scheme be though this is not quite so clear, that a tontine amounts protected by section 11 of 12 Geo. 2, c. 28, which to a wagering contract within 8 & 9 Vict. c. 109, s. 18, contains a saving for any “ hereditaments whatso, which section enacts that all contracts or agreements, ever, which shall or may at any time or times whether by parol or in writing, by way of gaming or hereafter be, according to the laws now in being, wagering, shall be null and void.” Allport v. Nutt (i c. legally allotted to or held by or by means of any allot B. 989), in which a sweepstakes was held illegal, was dement or partition by lots." We cannot discover a similar cided in the year in which the statute was passed ; and saving in any of the later statutes, and therefore no case decided after the statute throws any light upon presume that it has reference to such lotteries as the the question. But in Johnson v. Lumley (12 C. B. 468), Royal Oak Lottery and the Greenwich Hospital Lottery,

a wager is defined as a contract by which two or more which are saved by 10 & 11 Will. 3, c. 17, sections 4 and persons agree to deliver to each other something accord5. At any rate, we can find no unrepealed statute in ing as some uncertain event shall happen or not. In a being at the time of the passing of 12 Geo. 2, c. 28, | tontine pure and simple, where the subscribers are themwhich authorizes any allotment of the kind. The selves the cestuis que vie, there is no such contract. In statute 9 & 10 Vict. c. 48, under which art unions are

a tontine where the subscribers nominate other lives, the legalized with the consent of the Privy Council, might case is by no means so clear, and we think, upon the perhaps be resorted to independently by the promoter of whole, that it is within the section. As to the tontine an otherwise illegal scheme, but it clearly does not come

properly so called, if that be void for wagering, are not within the terms of the saving.

all joint tenancies created by the act of the joint tenants The authorities on the point are neither numerous nor

void also ? However this may be, no tontine of any satisfactory. In O'Connor v. Bradshaw (5 Ex. 882) the kind appears to be within the Lottery Acts, and Court of Exchequer inclined to think that a company

the subscribers thereto run no risk of incurring the formed for the purpose of receiving subscriptions in pecuniary penalties, or suffering the whippings private, small sums for the purpose of buying land to be dis

or, in certain events, public, imposed by 4 Geo. 4, c. tributed by lot amongst a minority of the subscribers only, 60, or of forfeiting double their subscriptions to the was not illegal under the Acts, but there the scheme was

common informer, under 8 Geo. 1, c. 2, s. 37. held to contravene the Bank Charter Act; whereas, in Sykes v. Beadon (27 W. R. 464, L. R. 11 Ch. D. 170), Jessel, M.R., expressed an opinion that a combination At Bow-street Police Court on Monday, Mr. Vincent, of persons formed on the principle of investing their sub- the Director of Criminal Investigations, applied to Sir J. scriptions and dividing the capital and profits amongst Ingham to indorse a Sltffield warrant, and took the themselves by means of certificates convertible by annual opportunity of expressing his opinion that the new facilities drawings by lot into preference dividend bonds, &c., afforded by the Summary Jurisdiction Act would prove of was " illegal under the Lottery Acts,” but there the com

great importance and value to the public. Under the old bination was held illegal under the Companies Act, 1862. make oath of his personal knowledge of the handwriting of

law it was compulsory that some person should attend and In both cases, therefore, we have "obiter dicta” only; the justice who:e signature is appended to the document. and it must be observed that in Sykes v. Beadon, the This always proved a serious barrier to the administration of learned Master of the Rolls volunteered an opinion with justice, by raising obstacles which delayed, or altogether out reference to O'Connor v. Bradshaw, and without prevented, the end sought to be attained. But under the any argument by counsel. Smith v. Anderson, decided new Act a signature could be attested in the local district, on Wednesday last, in which the “Submarine Cables and forwarded by post if need be ; and it was upon the Trusts” was ordered to be wound up on the ground of declaration which he now held, as to the authenticity of illegality, was clearly undistinguishable from Sykes v.

the signature of a Sheffield magistrate, that he applied to Beadon, and we observe that the Master of the Rolls, the court to indorse the warrant, and so admit of its immewhile repeating his dictum, was glad that it was in

diate execution.—Sir James Ingham said the new rule would tended to take the case to the Court of Appeal.”

no doubt save an enormous amount of trouble and experse,

and be should bave no hesitation in complying with the It may indeed be fairly argued that, looking to request made to him, as justified by the new Act. The the mischief intended to be avoided by the Acts, warrant was accordingly indoreed.

the county court, and so until the Judicature Act this diffiCOSTS SINCE THE JUDICATURE ACTS.

culty did not rise. A VARIETY of puzzling questions with regard to costs In Neale v. Clarke, the plaintiff's claim amounted have cropped up since the Judicature Acts. In some of to £1,029 158. 6d., and there being a counter-claim, the earlier cases the question was how far the old enact

the balance due to the plaintiff was ultimately found ments as to costs were repealed by the new legislation. to be £11 10s. 3d. Kelly, C.B., held that the The case of Garnett v. Bradley (25 W. R. 653, L. R. plaintiffs and defendants were respectively entitled 3 App. Cas. 944) has settled this class of questions. to the costs of the issues on which they had sucLately a great many questions have come before the ceeded. But Hawkins, J., dissented. The ground of courts concerning the right to costs where the event of the Chief Baron's decision was that the issues in the the action has been partly in one party's favour and case involved the question whether the plaintiff was partly in the other's favour, as, for instance, where entitled to £1,029 15s. 6d., a question which the county there has been a counter-claim, which the defendant court had no right to try. Hawkins, J., distinguished has succeeded in establishing, and also with regard to

between a counter-claim in the nature of a set-off, and the effect of the County Court Acts in such cases.

It one in the nature of a cross-action for unliquidated may be useful to notice some of these decisions.

damages, expressing an opinion that in a case where In Staples v. Young (25 W. R. 304, L. R. 2 Ex. D. & claim was established exceeding the limit of the 324) it was held that where the balance recovered by jurisdiction of the county court, but was reduced by a the plaintiff, above the amount of a counter-claim on counter-claim of the latter description below £20 in which the defendant succeeded, was less than $20 in an contract, and £10 in tort, the plaintiff was not deprived action of contract, the County Court Act, 1867, deprived of costs, because there the relief sought by the plaintiff the plaintiff of costs, because the plaintiff could only be could not be obtained in the county court, the plaintiff said to recover the balance within the meaning of that being unable, in the nature of things, to give credit for Act. It was urged that a counter-claim was a cross

unliquidated damages. In the case of a counter-claim in action really, and not like a set-off for this purpose, and

the nature of a set-off, he relied on the old decisions on that the plaintiff recovered the amount of his claim the County Court Acts, to show that when the plaintiff's within the meaning of the County Court Act; but this liquidated claim was reduced by a set-off of a liquidated argument did not prevail. It must be noticed that in amount below the county court limit, he was not entitled this case the plaintiff's original claim was under £50,

to costs. The learned judge pointed out that, by the so that it was a case in which the county court had present county court rules, a plaintiff can give credit for jurisdiction. In the cases of Potter v. Chambers ( 27 an admitted set-off. He then proceeded to discuss the W. R. 414, L. R. 4 C. P. D. 457) and Neale v. meaning of “relief sought” in the 67th section of the Clarke, L. R. 4 Ex. D. 206), which we shall Judicature Act. He says, “It cannot be determined by notice presently, the claim was over £50. In Blake v. the amount indorsed on the writ, or the claim in the stateAppleyard (26 W. R. 592, L. R. 3 Ex. D. 195) it was

ment of claim. So to construe the words would, in held that the County Court Act, 1867, s. 5, did not effect, put it in the power of the plaintiff in all cases to apply to counter-claims, and so when the defendant evade the operation of the County Court Act. Neither proved a counter-claim of £10, he was entitled to the can those words mean the sum to which the plaintiff costs of the issues so far as they related to the counter.

bona fide believes himself to be entitled. Some limitaclaim. This is plain enough. Setting up a counter

tion must be put upon these words, and after much con. claim in answer to an action in the superior court is sideration, it seems to me that the relief sought' quite a different thing from suing in the superior court, may most reasonably be interpreted to mean that when the action ought to have been brought in the

amount or balance which is really due and which county court. The defendant does not choose the the plaintiff is entitled to sue for, and recover without tribunal.

foregoing any portion of his just demand.” The question in Staples v. Young was comparatively The matter is one of considerable difficulty when simple, but there is considerable difficulty when the claim one looks to the substance of the thing. There being above the limit of the county court jurisdiction, are various considerations involved. The county courts the balance recovered above the counter-claim is below are intended to be tribunals for the recovery of £20 in contract or £10 in tort, as the case may be. In small, or comparatively small, claims, in a less ex. Potter v. Chambers, the plaintiff claimed over £50, and pensive and elaborate manner, and the idea is that established his claim; but that amount was reduced by the å plaintiff, who only recovers a small amount, ought counter-claim on which the defendant succeeded to £4 to have availed himself of their jurisdiction. What 2s., for which amount judgment was given. It is clear the plaintiff actually recovers by the judgment is, in that since the Judicature Act, 1873, s. 67, the provisions most cases, the proper test whether the action was one of the County Court Act, 1867, 6. 5, only apply for the county court. It may be said that if the plaintiff when the relief sought by the .plaintiff could have been on the balance of accounts is only entitled to £4, the given in the county court. And if, therefore, the plain-time of the superior court ought not to have been tiff could not have obtained relief in the county court, taken up, and great expense incurred; but, on the he cannot be deprived of costs, though he recover less other hand, it is obvious that where there is a very than the amount mentioned in the County Court Act. large claim on the one side and set-off on the other, the The point which hardly seems to have been sufficiently questions involved and the nature of the action are not considered in Potter v. Chambers is the question when such as are appropriate to the county court, which the plaintiff cannot, within the meaning of the Judica is intended for the speedy disposal of comparatively ture Act, obtain relief in the county court. Cockburn small matters. It is often impossible in important and C.J., says, “ The Legislature never intended to give the complicated matters for the plaintiff to know beforehand county courts jurisdiction to deal with cases when the that the claim he ultimately may succeed in establishing sums claimed on either side were considerable, though the will be such a small one. The power of admitting the difference actually due might be small." But it cannot set-off does not seem to us very material. A plaintiff is be that the sum claimed is the test, because otherwise, claiming, we will say, £10,000. The question whether he by claiming enough, the plaintiff could always elude the is entitled to £6,000 of that may depend on a nice provisions of the County Court Act. The question of question of law or fact quite proper to be determined by the counter-claim is immaterial in this point of view. a superior court. The defendant claims £3,999 and The plaintiff may claim £1,000, and recover £2 quite establishes his claim. The court decides against the apart from a counter-claim. Under the County Court plaintiff's claim of £6,000, consequently the plaintiff Act, 1867, the sum recovered is made the test, indepen. recovers £1. Can it be said that this was a fit deutig of whether the action couid have been brought in action for a county court ? It does not seen to 38

that what the plaintiff may recover on the balance of as the decision of the Master of the Rolls, I have always account is always the proper test; yet it undoubtedly is used the condition which I enclose, and which is, I think, the test which the County Court Act applied. On the sufficient to prevent any claim, in all ordinary cases, after other hand, what the plaintiff may have claimed is not conveyance. the test, for the reason given by Hawkins, J. The I venture to trouble you with it, because the matter County Court Act reserved, it should be remembered, does not seem to have attracted much notice ; for though a power to the judge to certify for costs in a case Bos v. Helshan is at least ten years old, I do not find where less than the required amount was recovered that any condition framed to meet the difficulty is We do not know that there is any better way out of the generally adopted. difficulty than to make the amount recovered the test, The effect of the Master of the Rolls' decision may trusting to the discretion of the judge to deal with those easily be guarded against; but, unless it be so, any of us cases where it would work unfairly, subject to appeal to who conduct sales for trustees may happen to find our the court.

clients in a very unpleasant position if a purchaser be In Chatfield v. Sedgwick (27 W.R. 790, L. R. 4 C. P. D. discontented with his bargain; and I strongly suspect 4.50), the Court of Appeal held that the amount claimed the Master of the Rolls would tell us that we ought to on the writ could not be the test whether the relief sought have protected them by a proper condition. J. A. could be obtained in the county court. There the plaintiff claimed to an amount exceeding £50, and the defendant

[The following is the suggested condition alluded to connter-claimed for £24. The plaintiff established a by our correspondent:~"If any error or omission shall, claim for £16, and the defendant for £23, and conse.

before the execution of the assurance to the purchaser, quently the defendant recovered £7. It was held that

be discovered in the particulars or conditions of sale the defendant was entitled to his costs. It was argued

with reference to the description of, or any matter that the plaintiff was entitled to his costs of the claim,

affecting, the property, compensation shall in such, but on the ground that he had claimed more than £50, but

| in no other, case be given or taken, as the case may rethe court decided against him. Jessel, M.R., said that,

quire; and in case of dispute shall be settled by two in his opinion, the Judicature Act, s. 67, means “where

arbitrators, one to be appointed by each party, or the relief is sought of a kind that can be given in the county

umpire of such arbitrators, appointed by them before court, and not where relief is sought only of such an | proceeding on such reference; and such reference shall amount as could be given by a county court.” If this

be subject to the provisions of the Common Law Proview is right, the decision in Potter v. Chambers would

cedure Act, 1854, relating to a reference to two arbiseem to be wrong; but there is no conflict between the

trators.”] two decisions, because in Chatfield v. Sedgwick, as in Staples v. Young, the plaintiff did not establish his claim to £50 or even £20.

Cases of the UM eek.

DEBTORS ACT, 1869, s. 5-INABILITY TO PAY-COMMITTAL General Correspondence.

-FORM OF ORDER-DISCRETION OF JUDGE OF FIRST IN. STANCE-RIGHT OF APPEAL.-In a case of Esdaile v. Visser,

before the Court of Appeal on the 13th inst., a question To CORRESPONDENTS.- All letters intended for publica.

arose as to the proper form of an order for committal tion in the Solicitors' Journalmust be authenti

under section 5 of the Debtors Act, 1869, and there was a cated by the name of the writer. The Editor cannot

further question as to the right of appeal from such an undertake to return MSS. forwarded to him.

order. Section 5 of the Act provides that, “subject to

the provisions herein mentioned, and to the prescribed · RIGHT TO COMPENSATION AFTER CON rules, any court may commit to prison for a term not ex. VEYANCE.

ceeding six weeks, or until payment of the sum due, any

person who makes default in payment of any debt or [To the Editor of the Solicitors' Journal.]

instalment of any debt due from him in pursuance of any Sir,--The effect of the recent decision of the Master order or judgment of that or any other competent coort: of the Rolls in Re Turner and Skelton (L. R. 13 Ch. D. provided (inter alia):-(2.) That such jarisdiction shall 131), demands, I think, the attention of the profession.

only be exercised when it is proved to the satisfaction of Until that decision be reversed, we must, I presume,

the court that the person making default either has, or take the law to be now settled that, under the usual con.

has had since the date of the order or judgment, the means dition of sale providing for compensation in case of

to pay the sam in respect of which he has made default, misdescription, a purchaser may, after conveyance, make

and has refused or neglected, or refuses or negleots, to pay

the same." And in the schedule of forms to the Roles a claim at any time within six years from the date of

under the Act, the form given of an order of committal the contract.

states that the debtor is to “be committed to prison for Such claims have, I believe, been of rare occurrence ; the term of six weeks from the date of his arrest, unless wbich may be partly accounted for by the general im

be shall sooper pay" the debt. One of the defendants to pression that, unless under special circumstances, they the action having made default in paying some instalments conld not be sustained.

of a sum for costs which he had been ordered to pay to the It appears, however, from the Master of the Rolls' plaintiff by monthly instalmente, the plaintiff moved for an decision that, even in the simple case of a misdescription order for his committal for six weeks, or until he sbould of the number of acres of an estate, the claim may be pay the arrears of the instalments (following the forn enforced ; and it is possible, therefore, that similar

given in the schedule to tbe Rules), and Hall, V.C., being demands may become more numerous.

satisfied on tbe evidence that the defendant had the means Claims for compensation after four years would be

to pay the sum, made an order according to the notice of annoying enough to ordinary vendors, but how much

motion. When the order came to be settled by the registrar more important to vendors who were merely trustees or

in the presence of both parties, he drew it up as an order not beneficial owners; and who might have divided the

“tbat an attachment be issued against the defendant for proceeds of sale and have no funds with which either to

his contempt in not having paid" the instalment, saying contest the claim or make compensation.

that that was the form usually adopted in the Chancery

Division, and that the writ of ca. sa. to be issued under the It would also probably follow from the decision that

order would limit the terın of imprisonment to six weeks. similar claims might, under the crdinary condition, be

The defendant appealed from the order thus drawn up, and made, after completion, by vendors against purchasers. two objections were taken on his behalf-(1) that since the

Since the common law case of Bos v. Helsham (15 passing of the Debtors Act a money demand could not be W. R. 259, L. R. 2 Ex. 72), which was to the same effect | enforced by attachment ; (2) that rule 2 of order 44 had not

« PreviousContinue »