Page images

credit of some one behind the agent, and that person the acceptor is liable to a bona fide holder for value crédid authorize the agent to pledge his credit. Therefore, without notice if the name of a stranger or a fictitious • at least, there are counterbalancing considerations on name be inserted as drawer, and that the reason is not · either side, and it would appear that the general rule of because the acceptor gave any authority for this or that

law which makes the principal liable upon the contract name to be inserted for in truth he gave no such author. must prevail as against the special exception allowed to ity-but because in favour of commerce it is essential to prevail in the case where the seller having treated the uphold the negotiability of bilts of excbange. The agent as principal it is no hardship upon him to be decision in the case itself is that there is no distinction obliged to look to the agent only.

for this purpose between the insertion of a fictitious The qualification of the rule laid down in the case we name and the forgery of the name of a real person, the are discussing is an obviously just one. If the seller in grounds given being that the party giving the blank a case of this sort, where it is doubtful whose credit he is acceptance has, by his act, enabled currency to be looking to, pursues a course from which the principal given to the bill and 'money to be obtained upon it, may fairly conclude that he is looking to the credit of and that in the interests of commerce the bona fide the agent only, the principal is then justified in paying holder ought to be protected. The notion that the agent and cannot be compelled to pay over again to any question of authority is involved is rather deprethe seller. It seems to us that the distinction made cated. between the two classes of cases in Irvine v. Watson We believe that the judgment really proceeds on the is a somewhat fine one, but still the reasons given for it true principle; but it does not seem to us anywhere to are of great weight and substance. If this case goes to formulate any ratio decidendi very accurately. It may be appeal we shall look for the decision with considerable

that the term "authority” ought really to be confined interest, for there seems to us to be a good deal to be to cases where there is actual authority, but it is often said on both sides.

used more loosely, as in cases where a person by his conduct or previous course of dealiog has entitled another to presume the existence of an authority as

against him though no actual authority was given. THE LIABILITY OF AN ACC EPTOR IN

It may be that it is not a question of authority ; BLANK.

but it does seem to us, on consideration, that the class of The point decided in the case of the London and decisions we are discussing may turn, to some extent, on South Western Bank v. Wentworth (28 W. R. 516) is one

inferences as to intention which may justly be drawn of considerable in portance, though the decision appears

from the act of the party giving the blank acceptance &3 to follow pretty plainly from previous decisions. The against himself, and that, using words in their striet decision was that, when a bill is accepted in blank siguification, the decision cannot depend solely on the for the purpose of being negotiated, and is afterwards grounds that the person giving the blank acceptance has filled in with the name and signature of a person as

enabled the fraud to be committed, and that the law drawer and indorser, the acceptor cannot, as against a

favours the negotiability of bills of exchange. In the bona fide indorses for value, adduce evidence to show case where the bill of exchange is accepted in due course, that either the drawing or indorsement is a forgery. It

but the indorsement is forged, the acceptor has, by was argued that, although one who accepts in blank accepting, conferred on the bill an outward appearance gives authority to write a fictitious name as drawer, he of validity upon the faith of which the bona fide holder gives no authority to give the bill currency in the name has acted. It may be said that the bona file holder of a real person as drawer for a fraudulent purpose,

should inquire and satisfy himself as to the genuineness oor to forge the signature of a real person, either as

of the indorsement; but so in the case of the blank • drawer or indorser. The evidence, it was urged, might acceptance to which an indorsement is forged, the bona

show that the signatures of the drawing or indorsement fide holder might have inquired. The favour the law 1. Tere imitations of a real person's writing and forgeries, shows to the negotiability of bills of exchange does not

or it might show that the drawing was genuine, and the go to the length of holding that the acceptor is bound indorsement a forgery. Some one might have picked

to pay the bonâ fide holder upon every bill that appears up the bill in the street and forged the indorsement. It

on the face of the instrument to be regular, and to be does not seem to us that these arguments will hold regularly drawn and indorsed. Though the instrument water, but they certainly suggest some interesting con. be negotiable, it is subject to defects of title, by which a siderations with regard to the law of negotiable instru. bona fide holder may suffer without any real negligence mente.

on his part. The formula required, which, to our mind, It is not quite so easy as, at first sight, it might the judgment in the case we are discussing does not, be thought to express the principle upon which the with exactitude, develop, is precisely that which may class of cases were decided, to which the case we are distinguish the case of a forged indorsement of a bill discussing belongs. We do not think the judgment accepted in blank from that of a forged indorsement of

gives altogether satisfactory expression to it, though the an ordinary bill. - considerations involved are very fully discussed. In An important distinction is pointed out in the

ordinary cases, when the acceptance is subsequent to the judgment between the two cases-viz., that where the drawing, the acceptance admits the drawing. The ac bill is accepted payable to the order of a real person,

deptance, however, does not necessarily admit the in- that person has a title to the bill, which remains in him, dorsement. For instance, if a bill is drawn payable to notwithstanding the forged indorsement, and until he the order of the payee, and accepted, the acceptance does has indorsed the bill. It would be obviously monstrous not admit the indorsement. If such indorsement be forged, that the acceptor should be bound to pay two persons on even a bona fide holder cannot make a good title to the bill the same bill. In the case of the bill accepted in blank, and so cannot recover upon it. The acceptor's position and then indorsed in a fictitious name, or by a forged would appear to be that he never undertook to pay indorsement, there is no real person who is entitied to except to the person ordered by the payee, and it turns indorse and recover upon the bill. It is, therefore, out that there is no such person, because the payee never really quite immaterial to the acceptor what name is made any order. The question is wherein does this filled in. He has, perhaps, been cheated out of the case differ from that where the acceptance is in blank proceeds of his acceptance-as happenod in the case we and a forged indorsement is filled in afterwards? In are discussing-but whether this was done by forging summarizing the cases where the acceptor has signed the name of a real person, or by means of indorsing a his name upon a blank piece of stamped paper, or on a fictitious name, or of a genuine indorsement, is to paper upon which a drawing in blank has been written, him quite immaterial. This is a substantial distinction, the judgment in the case we are discussing says that I and it seems to lie very near the true principle of these

[ocr errors]



cases, but it has nothing to do with the consideration that the acceptor enabled currency to be given to the

Rebiews. bill by his act, or with any particular degree of favour which the law accords to the negotiability of bills of

COSTS. exchange. There is no doubt that the law favours the negotiability of bills of exchange in the sense that the COSTS IN THE HIGH COURT OF JUSTICE AND OTHER COURTS. bona fide holder's apparently good title cannot be im By John Scott, Esq., Barrister-at-Law. FOURTH peached by reason of fraud on the part of a previous

EDITION. Stevens & Sons. holder, and also that a bill indorsed in blank may be This new edition of Mr. Scott's well-known work transferred by a person who has no title to it himself ; embodies the changes effected since the Judicature Acts, but the present case differs altogether, because the and, so far as we have examined it, appears to be question here is whether there was a good indorsement accurate and complete. The bills given include, besides so as to confer the quality of negotiability on the bill, costs in the several Divisions of the High Court, costs of and it is clear that an acceptor by accepting does parliamentary and municipal election petitions ; costs not necessarily admit the indorsement.

under the Regulation of Railways Act, 1873; costs of It seems to us that though the case may not arbitrations, and costs in the county courts, Probate, &c., turn

question of authority, strictly 80 Division, Houses of Lords and Commons, Crown Office, called, it does turn on the responsibility of a person and bankruptcy. Short practical notes are added ; and for the acts of another whom he has intrusted with to the sections relating to costs of parliamentary certain facilities, and set in motion for a certain purpose. election petitions there is prefixed an introduction, likely Of course, in one sense, there was no authority given by to be of special interest at present, in which the whole the acceptor to commit a forgery-that is, there was subject of these costs is discussed, and extracts are given no actual authority, neither was there any holding out from the judgments in the modern cases. The least of authority by conduct, for the bona fide holder of the satisfactory part of the book is the index, which strikes bill did not act upon the experience of any previous us as somewhat scanty. transactions. But the mere fact that the acceptor enabled the fraud to be committed is not enough. If a man leaves in a drawer a blank acceptance, which is

INTERNATIONAL LAW. afterwards stolen and filled in by the thief, and passed ELEMENTS OF INTERNATIONAL LAW. By HENRY WHEATON, away to a bona fide holder, the acceptor is not liable : LL.D. SECOND ENGLISH Edition. By A. C. Boyd, Baxendale v. Bennett (26 W. R. 899.) The basis of the Barrister-at-Law. Stevens & Sons. acceptor's liability in the case we are discussing seems It is not yet two years since we reviewed Mr. Boyd's first to be that he had intrusted another with the blank ac edition of this work, and the present edition offers little ceptance and set him in motion for the purpose of matter for fresh observation. Mr. Boyd has printed the obtaining money thereon, so giving him in fact the power Treaty of Berlin and the Anglo-Turkish Convention in of filling up the blank acceptance in whatever way he full in the appendix, but we observe that he has omitted pleased, it being quite immaterial to the acceptor how to notice in the text, at p. 259, the provisions of the first he did so. A man who gives to another the unlimited mentioned treaty relating to the neutrality of the Danube. sort of commission involved in giving a blank accept- Nor have we found any reference to the question of ance cannot afterwards as against a bona fide holder be whether the prohibition of privateering by the Declaraheard to say that that other has exceeded his authority. tion of Paris would extend to ships which, though beIn the case of Baxendale v. Bennett the act of the defend. longing to private owners, and intended to be used only ant in creating the blank acceptance enabled the stealer for capturing merchant ships, are placed under the conto give curreucy to the bill, but, as that happened trol of the State and are manned by officers of the State. entirely contrary to the will and intention of the defend. The question has, since the publication of the last edition, ant, he was not liable. Here the acceptor does will and threatened to become a practical one; and it would at intend that the blank acceptance shall be put in circula- | least have been desirable that the Prussian decree tion and gives it to a person for the purpose, leaving it for a voluntary marine, issued during the Franco-German to such person to fill it in and obtain money upon it. War, should have been noticed. The principle seems to be that where a person, for the purpose of procuring a benefit to himself-viz., an advance of money by means of a negotiable instrument

SNELL'S EQUITY. commits to another entirely the choice of the mode of THE PRINCIPLES OP EQUITY. By EDMUND H. T. SNELL, carrying out the transaction, intrusting to him the busi. Barrister-at-Law. FIFTH EDITION. To WHICH Dess of framing the negotiable instrument to which the ADDED AN EPITOME OF THE EQUITY PRACTICE. SECOND signature will give apparent validity, and so, giving that Edition. By ARCHIBALD BROWN, Barrister-at-Law. other the means of obtaining money from a bona fide Stevens & Haynes. holder, he cannot afterwards be heard to say In the present edition Mr. Brown has certainly im. that the instrument is void. The case really turns on the fact that the acceptor in blank trusted proved upon his last edition of Snell


, but there are points

remaining on which further amendment is not undesir. the person who committed the forgery, and voluntarily

able. There is occasionally a lack of precision and degave him the means of forging a negotiable instru

finiteness of statement, as, for instance, in the statement ment.

on page 283 as to executors' retainer :-"But any creditor, who is at the same time executor of the deceased, may retain to himself his own debt in full, at

least out of the legal assets and as against other creditors Following the ancient custom, Lord Selborne was sworn

in equal degree, but subject to certain restrictions." in as Lord Chancellor at Lincoln's-ion on Thursday morn

What a student wants is to have concisely stated the ing in the presence of all the Chancery Judges, and Mr. exact limits of a doctrine. Again, at p. 318 the student Glasse, as the senior Queen's Counsel present, moved,

is directed to “see an unreported case of Hill v. Astley, "That the oaths be recorded."

Lanc. Ch. Crt. 1878 (Little, V.C.)”; it would be The business of the Bradford County Court bas daring the

instructive to know how and where this case is to be past few years increased to such an extent that it has been

On page 511 Mr. Brown first of all cites Matthew found necessary to appoint a second registrar. Mr. Edmund v. Northern Assurance Company (27 W. R. 52) as an Lee, who has been deputy-registrar about two years, bas authority for the proposition that an assurance society received the appointment and will act in conjunction with the is not in a fiduciary relation towards the person entitled present registrar, Mr. George Robinson.

to the policy moneys, and then remarks, " But see In re


Haycock's Pclicy" (24 W. R. 291), as if the latter case were opposed to the proposition in the text. It is

Cases of the UU eek. hardly necessary to say that in Haycock's case the Master of the Rolls said that an insurance company in BILL OF SALE_VALIDITY-REGISTRATION—ATTESTATION the circumstances mentioned is a mere debtor. On the BY SOLICITOR-EXPLANATION TO GRANTOR-STATEMENT OP whole, however, the book maintains its ground.

CONSIDERATION-BILLS OF SALE Act, 1878 (41 & 42 Vior. c. 31), ss. 8, 10.-In a case of E. parte The National

Mercantile Bank, before the Court of Appeal on the 22nd THE NEW RULES.

ult., some important questions aroge upon the construction A COMPLETE INDEX TO THE RULES OF THE SUPREME

of the Bills of Sale Act, 1878. The trustee in the liquidation COURT, APRIL, 1880, AND TO THE FORMS. By EDWARD

of the grantor of a bill of sale sought to have it declared in

valid against him, on the ground that the provisions of the Swain. Stevens & Sons.

Act had not been complied with. One of the objections was. This is an almost indispensable addition to the re- that the occupation of the grantor had not been sufficiently cently issued rules. The index appears to be intelligently stated in the affidavit made on the registration of the deed. framed, and is issued in a size adapted to bind with the He was stated to be a farmer and an auctioneer, and it was official edition of the rules.

alleged that he was also carrying on the business of a bill discounter, and that be ought to have been so described. On this ground mainly, the Chief Judge held (28 W. R. 399) that the bill of sale was void as against the trustee. The

Court of Appeal (JAMES, BAGGALLAY, and BRAMWELL, L.JJ.) General Correspondence.

held, upon the evidence, that the grantor had, before the

execution of the deed, ceased to carry on the business of a bill To CORRESPONDENTS.-All letters intended for publica discounter, and, on this ground, overruled the objection. tion in the Solicitors' Journalmust be authenti

Another objection was that the effect of the deed had not cated by the name of the writer. The Editor cannot

been fully explained to the grantor by the solicitor who undertake to return MSS. forwarded to him.

attested his execution of it. The attestation clause stated

that before the execution of the deed by the grantor the THE NEW ORDERS.

effect thereof had been duly explained to him by the attest

ing solicitor. There was evidence that the grantor had [To the Editor of the Solicitors' Journal.] not been informed of one of the most material clauses in Sir,– Under the new orders_ord. 57, r. 42—"the the deed. The Court of Appeal held that, even if the true time for delivering or amending any pleading may be

construction of section 10 of the Act was that the attesting enlarged in writing without application to the court or a

solicitor must explain the effect of the deed to the grantor, judge.”

section 8 did not, on account of the omission to explain, This rule the masters and their clerks are endeavouring

make the deed void against any one. But they were farther to enlarge, by refusing to draw up any orders for time

of opinion tbat all that section 10 requires is that the

attestation clause shall state that the effect of the deed has where a consent has been given; and they have intimated

been explained to the grantor, and that it does not require that unless a previous application to the other side for a

that the explanation shall, in fact, be given. JAVES, L.J., consent before taking out the summons has been made,

said that seotion 8 contained no provision making a bill of the party applying will have to pay the costs. This read.

salo void against any one because the attesting solicitor ing of the rule is causing great inconvenience to the pro. bad omitted to explain the effect of it to the grantor, and fession; it necessitates calling very often twice on your it was not for the court to introduce into the Act an enactopponent and then results in a summons after all. If the ment which was not to be found there, merely because it order bad been made “that when a party indorses a might think that it would be a logical addition. But he consent on a summons for time, no order need be thought that the attestation of the deed by a solicitor, drawn up," that perhaps would have been better. But with the statement that he had explained the effect of there is one thing that seems to have escaped the atten. the deed to the grantor, was all that the Act required. tion of the framers and the construers of the rule the The Legislature intended to give to the grantor the loss to the Inland Revenue without a corresponding benefit | protection of a solicitor pledging his word that he to the public. So far as my experience tells me, it will

| did give the explanation. The protection might make at the least 200 to 250 summonses and orders per

pot in all cases be effectual, but it was all that the Legis

lature intended to give. A solicitor was an officer of the day loss to the revenue. Taking, say, 100 summonses at 28. and 100 orders at 3s. per day, the loss will be £25, or

court, and was liable to serious consequences if he neglected

bis duty. BRAMWELL, LJ., said that, paradoxical as it $7,800 per year. Then if the district registries do the

might appear, he thought that the Aot did not require same, the loss will be very much greater; but take them

that any explanation should be given by the solicitor to the same as London, and the loss will be £15,600 per

the grantor ; all it required was that the attestation year, sufficient to pay for two new judges and their clause should state that the explanation had been given. subordinates.


He did not think that this provision was meant for the 8, Ely-place, London, E.C., April 26.

protection of the grantor. The title of the Act stated that it was intended to prevent frauds on creditore. He thought the object of the provision was to prevent a

man's being made a party to a fraud on his creditors; A singolar point, says the Albany Law Journal, bas been it was for the protection of creditorg. Probably the object decided in the New York City Common Pleas. It seems was to secure the presence of an intelligent man wben tbat on the trial below the plaintiff's cause was conducted the execution took place, and the object of requiring & by a law clerk not admitted to practice. He also gave statement in the attestation clanse that the effect of the testimony, and on cross-examination it appeared that he deed had been explained to the grantor was that there was not an attorney and counsellor. Objection was then might be a reasonable certainty that the explanation had made to bis conducting the cause any further, but the in fact been given. If any other constraction were given chjection was ignored, and be conducted the cause to the to the section the consequences would be shocking. Every close. The General Term eet aside the judgment as void. bill of sale would, in the event of the bankroptcy of the This is under sections 63 and 64 of the Code of Procedure. grantor, be called in question, and the bankrupt, who The former forbids any person not admitted as an attorney would always wish to increase the amount of his assets, end counseller to “make it a business to practise as an would be called as a witness on behalf of the trustee to attorney” in New York or Kings County; and the latter prove that there was some omission in the explanation makes a violation of that probibition a misdemeanor; and given to him of the effect of the deed. The third objecalso enacts that any judge or justice in either of those tion to the bill of sale was that the consideration which counties “ who knowingly permits to practise in his court". was given for it was not duly stated in it in compliance any euch pereor, ie guilig of a misdemeanor.

with section 8 of the Act. The deed purported to be made in “consideration of £2,050 paid by the mortgagees | Judicature Rules, the court had a judicial disoretion to allow to the mortgagor at or before the execution hereof." The a married woman to sue in her own name with or without evidence showed that, when the bank consented to make | giving security for costs, and as to requiring a next friend to the advance, it had been agreed between them and the give security for costs. The old rule of the Court of grantor that he should apply £550, part of the advance, Chancery, that the application for security must be made in taking up two promissory notes and a bill of exchange before the next material step in the cause was taken, had which he had given to the bank as security for some pre been abrogated, and neither the Chancery Division nor the vious advances made by them to him. One of the notes common law divisions were now fettered by the old rule of fell due & week, and the other about five weeks after the the Court of Chancery, or by the old rule of the common execution of the bill of sale. The bill of exchange fell | law courts, that the application must be made before issue uae about a fortnight after. The Court of Appeal held was joined. — SOLICITORS, Hine-Uaycock & Bridgman; that the requirement of section 8 had been complied with. | Joseph E. S. King. JAMES, L.J., said that when the section said that the consideration must be set forth, it meant that it must be

TRADE NAME-INFRINGEMENT-RIGHT TO USE NAME OF truly set forth ; probably it was not necessary that it should

| DECEASED PERSON.-In a case of Massam v. J. W. Thorley's be set forth with minute accuracy, but it must be set forth in

Cattle Food Company, before the Court of Appeal on the substance. In this case he was of opinion that the considera.

27th ult., the action was brought by the executors of a tion was the £2,050 which was lent to the grantor. It bad

testator named Joseph Thorley, who had manufactured and been contended that any collateral bargain as to the application of the consideration ought to be set forth as part of the

sold an article which he called “ Thorley's Food for Cattle,"

and had by his will directed that his business should be consideration, and that in the present case the deed ought to

carried on by his executors, to restrain the defendant company have contained recitals showing the whole of the transaction. His lordship could not, however, see that the Act required

from represeuting that any cattle food manufactured and sold

by them was manufactured and sold by the testator, or by recitals of the motive and object of the advance. It seemed to him

his executors, and from representing that they were carrying that the motive of the lender in making the loan on the business which had been carried on by the testator. formed no part of the consideration for the deed. The con

J. W. Thorley, whose name was used by the company, was sideration was the money which was advanced to the

a brother of the testator, and had been in his employ, and had borrower, though he was to pay money out of it in a par

thus become acquainted with the secret of the composition ticular way. The Act required that the actual consideration

of the cattle food. The defendant company was formed should be stated; it did not require the statement of any after the death of the testator, and J. W. Thorley was in. collateral bargain relating to it. Of course, if there was a

duced to allow the use of his name and to take one share in bargain that the money should be at once returned to the

the company. It was proved that the article sold by the lender, that would be a mere sbam. But where the bargain

company was substantially the same as that which was sold was to apply part of the money advanced in payment of a

by the plaintiffs. The company sold their article in packets Teal debt due at the time of the execution of the deed, there

enclosed in a wrapper almost exactly the same as that which was no reason for calling it a sham, or for saying that the Act

was used by the plaintiffs. Malins, V.C., dismissed the required it to be stated. What the Act required to be stated

action, and in so doing founded his judgment to a great extent was the real consideration as between the grantor and the

on the order of Lord Romilly, M.R., in James v. James (20 grantee, that wbich, if the Act had not been passed, would

W. R. 434, L. R. 13 Eq. 421), that after the death of an inbave been properly stated in the deed as the coasideration for

ventor, who has sold the article which he manufactures under it. BAGGALLAY, L.J., said that he thought the case of Ex

his own name, any person making the same article is entitled parte Carter (27 W. R. 943, L. R. 12 Ch. D. 908), which

to sell it, and to describe it by the name of the inventor, had been relied upon, was distinguishable, though he was by

though he could not have done so during the inventor's lifeno means satisfied that he should have agreed with the

time. The Court of Appeal (JAMES, BAGGALLAY, ard decision of the Chief Judge in that case. BRAMWELL, L.J.,

BRAMWELL, L.JJ.) were of opinion that the company had no said that he had felt a good deal of difficulty about the con:

right to use the name, “ Thorley's Food for Cattle," and they sideration, but on the whole, his opinion was in favour of the appellants. Although in a certain sense the grantor could

granted the injunction asked for. James, L.J., said that le

could not agree with the reasoning of Lord Romilly in have gone away from the bank with the whole £2,050, and

James v. James. He could not see how the right of the the bank could not have stopped him, but could only have

original inventor was lost by his death, nor why he cou'd bronght an action against him, yet there was a bargain that

not transmit it to his representatives. His lordship al-o he should go away with only £1,500. But the Act only

said that the well-known judgment of Knight Bruce, L.J., required that to be stated as the consideration which would,

in the case of Burgess v. Burgess (3 De G. M. & G. 896) previously to the Act have been properly stated as the con

had been very much misunderstood, and that the judgment of sideration; if the statement would have been accurate before

Turner, L.J., in the same case was much more accurately the Act, it was accurate still. But his lordship said that he

expressed, and it has been adopted by the House of Lords in did not feel so confident on this point as on the other two.

Wotherspoon v. Currie (L, R 5 H. L. 508).-SOLICITORS, He also expressed an opinion that such a rigorous Act as the

Collyer-Bristow, Withers, f Russell ; W. Eley.
Bills of Sale Act ought not to be too rigorously enforced. -
SOLICITORS, J. J. Irving ; Ashurst, Morris, & Co.



of Ex parte Fardon's Vinegar Company, before the Court of

Appeal on the 22nd ult., the appellants had, after they had -DISCRETION OF COURT-ORD. 16, R. 8-ORD. 55, R. 2.

set down their appeal, filed some new affidavits, and the In a case of Martano v. Mann, before the Court of Appeal on the 28th ult., a question arose as to security for costs. The

respondent had filed affidavits in reply. On the opening of

the appeal the respondeut's counsel took the objection that action was brought by a married woman, by a widow as her next friend, for the execution of the trusts of a settlement.

the notice of appeal had been given too late. The appel

lants' counsel admitted that this was so, but urged that the The defendants had consented to a motion for the appointment of a receiver, and after this they applied to Bacon, V.C.,

respondent, if he intended to rely on this objection, ought for an order that the next friend should give security for

not to have filed any new affidavits, and that the appellants costs, alleging that she was a pauper, and that they had only

ought not to be ordered to pay the costs of those affidavits, .

| The Court (JAMES, BAGGALLAY, and BRAMWELL, L.JJ) recently discovered this fact. Bacon, V.C., refused the

dismissed the appeal with costs, on the ground that it was Application. Before the argument on the appeal was concluded, the court (JESSEL, M.R., and BAGGALLAY and

too late, but expressly excluded the costs of the respondent's

| new affidavits. ---SOLICITORS, Llewellyn, Ackrill, f Hammack; BRAUWELL, L.JJ.) suggested that, as rule 8 of order 16 enables a married woman, with the leave of the court, to gue

Tippetts, Son, & Tickle. in her own name, the name of the next friend should be struck out. The defendants would thus have, by means of the ADMIRALTY ACTION—COLLISION AT SEA-ACTION BY separate property of the married woman, the same security | OWNERS OF CARGO-Costs.In a case of The City of for costs that a defendant has in an ordinary case. This Manchester, before the Court of Appeal on the 23rd ult., the suggestion was acceded to, and an order was made accordingly. action was brought by the owners of the cargo of a ship which JESIEL, M.R., said that he was satisfied that, under the had been sank in a collision at sea to recover the value of


the cargo from the owners of the other ship. Sir R. LENGTH"-RULES OF COURT, 1875, ORD. 37, , 3-Roles Phillimore held that both ships were to blame for the OF Court (Costs), ORD. 7, R. 18.-In a case of Bragenton v. collision, and that, consequently, the plaintiffs could recover Yates, before the Master of the Rolls on the 23rd ult., & only half the damage. But he held (27 W. R. 697, motion was made to strike out an affidavit intended to be L. R. 5 P. D. 3) that the ordinary rule that, when used at the trial on the ground of scandal. The affidavit both ships are to blame, no costs are given on either set out verbatim numerous long letters filling many printed side, did not apply when the action was brought, not pages of the affidavit from a third person to the deponent, by the shipowners, but by the owners of the cargo, and certain passages in which applied various epithets to the he gave the plaintiffs their costs against the defendants. moving party, and made various charges against him, having The Court of Appeal (JAMES, BAGGALLAY and BRAMWELL, po connection with the subject matter of the action. The L.JJ.) held that, as the plaintiffs had claimed more than letters were also made exhibits to the affidavit. The afithey were entitled to-viz., the whole damage instead of davit also set out in full several long statements of acesunt, only half—They must bear their own costs. But their lord- and also a verbatim report of a long judgment of a registrar ships did not decide how the costs must have been borne in bankruptcy. The respondent offered to expunge the supposing that the plaintiff's had claimed only half the admittedly irrelevant parts of the letters, and an order was damage, and the defendants had refused to pay anything.- eventually made to that effect. Jessel, M.R., was, however, SOLICITORS, Gellatly, Son, & Warton ; Stokes, Saunders, f of opinion that the affidavit came distinctly within the Stokes.

words of Rules of Court, 1875 (Costs), ord. 7, r. 18, as being “improper, containing unnecessary matter, and as of an

necessary length," and be considered he could on the present LEASE OF MINE-FORFEITURE - BREACH OF COVENANT, application deal with the costs of the whole affidavit. The BY LESSEE TO WORK.-On the 24th ult. the Court of Appeal material words of the order are, “ The court or judge may, (JAMES, BAGGALLAY, and BRAMWELL, L.JJ.) affirmed the

at the hearing of any application or proceeding in any cause decision of Jessel, M.R., in the case of Kinsman v. Jackson or matter in court or at chambers, and whether the same is (28 W. R. 337). The question was whether the lease of a china-clay mine had been forfeited by reason of a breach of objected to or not, direct the costs (inter alia) of any affidavit

or any part thereof which is improper, unnecessary, or contains contract by the lessees. The lease contained a licence by the

unnecessary matter, or is of unnecessary length, to be dislessees to dig, work, and search for china clay within certain allowed.” JESSEL, M.R., said that the affidavit in question land, and all such china clay, when found, to wash, cleanse, offended against every one of the points mentioned in the prepare, and make merchantable and fit for sale. And the rule, quite independently of the merits of the affidavit itself, lessees covenanted that they would, during the term, work and therefore he considered he ought to direct the costs of the for china clay in the most proper and effectual manner, and affidavit to be disallowed, and to direct the respondent to pay with a reasonable number of men kept employed on the the costs occasioned by such affidavit. The applicant would works at all reasonable and usual working times, so that also bave the costs of the motion as between solicitor and the china clay there to be found might be raised, wasbed, client, and his lordship added that he was sorry practitioners and made merchantable as speedily as possible. No clay did not call his attention to this class of affidavits more bad been raised for some months, but during all that time frequently -SOLICTORS, Church, Sons, f Clarke, for Francis, the leesees bad employed their men in washing and preparing Baker, f* Watts, Newton Abbot ; Henry Reid. for sale clay which had been already raised. Jessel, M.R., held that there had been a breach of the covenant, and re. fused to restrain the lessor from enforcing the forfeiture of MORTGAGE-PRIORITY_BREACH OF TRUST-NOTICEthe lease. This decision was affirmed by the Court of Appeal. SOLICITOR.-In a case of Cave v. Cave, before Fry, J., on -SOLICITORS, J. F R. Gill; Bell & Sleward.

the 22nd olt., a question arose as to the priorities of some mortgagees over cestuis que trust, who had been de

franded by their trustee, and as to constructive notice. WITNESS-PRIVILEGE-POURSUIVANT OF Heralds' COL- The sole surviving trustee of a settlement, who was a solici. LEGE.—In a case of Slade v. Tucker, before the Master of the

tor, allowed his brother, who was the tenant for life ander Rolls on the 23rd ult., a question was raised as to whether

the settlement, to invest part of the trust fund in the par. “Rouge Croix,” one of the poursuivants of the Heralds'

chase of land, which was conveyed to the tenant for life in College, was entitled to privilege from examination. The fee. The tenant for life afterwards mortgaged the land as position of a poursuivant appears to be in the nature of a

bis own. The first mortgagee, to whom the legal estate confidential adviser to persons attempting to make out their

was conveyed, had vo notice of the trust, unless be bad pedigrees, and it seems that such persons are obliged to ap

constructive notice of it through the trustee solicitor, who point a poursuivant to act on their behalf in investigations acted for both mortgagor and mortgagee in the mortgage in the Heralds' College. It was argued that, from their transaction. The action was brought by the remainder. position as quasi-legal advisers on matters of pedigree, they men under the settlement, claiming a charge on the land were within the ordinary doctrine of privilege as applying to in priority to all the mortgagees. Fry, J., held that the counsel or solicitor, and hence are not bound to disclose any trustee solicitor had been guilty of conduct in the nature communication between themselves and the persons they of fraud, and that, consequently, it could not be assumed were advising. JESSEL, M. R., was of opinion that the ordinary that he had communicated the circumstances to his client, rule of privilege did not extend to poursuivants in the Heralds’ the mortgagee. Therefore, do notice of the trost could be in fact only extended to barristers and solicitors, or persons imputed to the first mortgagee, and he was entitled, by acting for the solicitors, such as their clerks or town agents. reason of his having the legal estate, to priority over the He therefore held that Rouge Croix was bound to answer. plaintiffs. But the subsequent mortgagees, kaving only College. Such privilege bad been unavailable for a priest equitable estates, must be postponed to the equitable right as to matters communicated to him in confession, and it of the plaintiffs, which was the prior in time. The first The action was brought to restrain Rouge Croix from part mortgagee bad advanced £500, part of his mortgage money, ing with, or disclosing the contents of, certain books of evi. with notice of the second mortgage, and Fry, J., held dence which it was alleged were in his possession, and wbich that, as between the first and second mortgagees, the it had been agreed some years before by the defendant second mortgagee was entitled to priority in respect of the to a litigation, to whom they belonged, should be handed £500, and that the plaintiffs were entitled to the extent of over to the present plaintiff. A motion was made to £500, to stand in the place of the second mortgagee, and restrain any dealing with the books until the trial, and to have the benefit of his priority over the first mortgagee. Rouge Croix was cross-examined on an affidavit he bad made -SOLICITORS, Brook g Chapman; J. H. Howard, James as to their custody, and denied that he had ever had the Edell; Parker, Lee, Š Co.; H. 7. Hughes ; Curtis & books in his possession, or had even seen them for some Betts, months. On this no order was made on the motion, bis lordship remarking that the plaintiff had evidently made the wrong person defendant.-SOLICITORS, Ward, Mills, di: Co.; PRACTICE-ORDER UPON SOLICITOR TO PAY COSTS OF Lodge.

Costs Or APPLICATION.-An application was made to Vice-

ncellor Hall, on the 15th ult., for leave to issue a writ PRACTICE-AFFIDAVIT-STRIKING OUT-Costs-SCANDAL of attachment against A., a solicitor. The application was-“IMPROPER, UNNECESSARY, AND UNNECESSARY made on behalf of the defendants in the action of Tilney


« PreviousContinue »