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action still apply to the more modern form of action. LIABILITY OF TENANT FOR LIFE FOR The ancient authorities, such as Lord Coke (2 Inst. 145), PERMISSIVE WASTE.

seem to have thought that the provisions of the Statute It sometimes excites surprise to find that points which of Marlbridge applied to permissive as well as comone would suppose must have frequently arisen have

missive waste, but there is a conflict between the modern either never been decided or have never been reported.

dicta on this point and the opinion so expressed by Lord Such a point arose in a case of Woodhouse v. Walker (28

Coke (see 1 Wms. Saunders, 323, 2 Wms. Saunders, W. R. 765), recently decided by the Queen's Bench

251). In Jones v. Hill (7 Taunt, 396), it is said that Division. The facts were these. A testator devised

waste can only lie for that which would be waste if there certain houses to his wife for life," she keeping them in

were no stipulation respecting it, and, therefore, it could repair," with remainder to the plaintiff in fee. The

not be waste to leave premises in a worse condition that tenant for life entered upon and enjoyed the houses dur.

A. B. had put them into. The reporter inserts in the ing her life, but neglected to repair them, and at her

head-note a semble that an action for permissive waste death the plaintiff repaired them, and brought his action

will not lie against tenant for years, but the judgment in the county court against her executor to recover the

does not appear to contain any dictum to that effect. expenses so incurred. The county court judge decided

It has been held that an injunction in respect of peragainst the plaintiff, apparently on the ground that no

missive waste is not grantable except in cases where action of tort in respect of the permissive waste would

there is an express covenant; but that does not seem have lain against the tenant for life in her lifetime, and

conclusive on the point. The truth is that in the case of that, consequently, no action lay against her executor

tenants for years there is almost always an express under 3 & 4 Will. 4, c. 42, s. 2, which applies only to

covenant to repair, and so no question as to permissive actions for wrongs. Against this decision the plain

waste can arise. With regard to tenants from year to tiff appealed. It was argued on the part of the

year it may be argued that their estate is but a sort of plaintiff that an implied contract to repair arose as

expansion of the tenancy at will, and tenants at will against the tenant for life from accoptance of the devise,

stand on a different footing. It may well be that they on the ground that if she accepted the devise she must

| were not within the Statute of Marlbridge (see accept the burthen to which it was expressly made sub

Wms. Saunders, ubi supra). In the case of Gibson ject. It seems to us that there is great difficulty in

v. Wells (1 N. R. 290) it was certainly held that the working out this notion. With whom can such a con.

action for permissive waste did not lie, but there the tract be supposed to be made ? What privity of con action was against a tenant at will. tract is there between the tenant for life and the re

The court held it to be unnecessary to determine as to mainderman. There may be several remaindermen

the liability of tenants for years to an action for permiswith different estates. Is there & contract with

sive waste in ordinary cases, because in the case we are each of them? It ultimately became unnecessary

discussing they thought that the action lay at common for the court to express any opinion on this contention,

law, and, therefore, there was no necessity for considerbecause they came to the conclusion that the county

ing the effect of the Statute of Marlbridge in this court judge was wrong, and that an action of tort would respect, or choosing between the conflicting authorities have lain against the tenant for life for the permissive

on the subject. They held that the reasons given by waste in her lifetime, and consequently that it lay

Lord Coke for the non-existence in general of an action against her executor.

of waste against tenants for life or years by implication It is satisfactory, so far as the justice of the case is showed that at common law an action of waste lay concerned, that the court were able to come to this con

when the grantor of the particular estate had expressly clusion; and the dicta contained in the ancient books of

stipulated against waste. This is perhaps a somewhat authority are certainly somewhat in its favour. It is no i slender foundation to build upon, but the conclusion is doubt equitable that a person who acoepts a devise

a reasonable one. It may be urged that Lord Coke's should accept it subject to the burthens imposed upon

meaning was that, as there were means by which the gran. it by the devisor, if such burthens are not contrary to

tor could bring about the desired effect without the action public policy. There is, however, considerable difficulty of waste, such an action was altogether unnecessary. He in reducing the law on this subject to logical principles.

might have insisted on a covenant, or he might have proLord Coke says (2 Inst. 300), that the common law gave

vided for a forfeiture of the estate in the case of waste. an action of waste against tenants in dower and by the It does not seem to us, therefore, to follow necessarily, curtesy, but not against tenants for life or for years, the

from Lord Coke's words, that an action of waste lay at reason being this- viz., that as the law created estates in

common law in a case where there was an express stipudower and by the curtesy, the law gave a remedy for

lation against waste. But it is very reasonable that such waste, whereas estates for life and for years arising from

an action should lie, and we think that a little agility in grant or devise, the party making such grant or devise

jumping to the result that it would lie was very well might have provided expressly against waste, and, there.

bestowed, though we can imagine future difficulties fore, it is his own negligence or default if he does not.

arising from the decision--as, for instance, when there are This is rather strange reasoning, because it seems

successive remainders, and the case is not, therefore, so hard on remaindermen or reversioners who were no

simple as that of tenant for life and immediate re. parties to the negligence or default of the party creating

mainderman in fee. Again, it is true, no doubt, that the particular estate, and it is they who suffer. It may

the conflict of opinions which we have alluded to arose be said that they have privity of estate with the original

with regard to the action of waste under the Statute of grantor, and so ought to suffer for his neglect, but the

Marlbridge, but on consideration it seems that the same whole doctrine savours of extreme narrowness and un question substantially arises with regard to the common reality. It looks very much as if some rigid worshippers

law action of waste. Did an action for permissive waste of precedent had in olden times, finding no precedent for

lie at the common law against the tenant by the curtesy an action of waste against tenant for life or for years,

or the guardian in chivalry? We should doubt it. The held that the action would not lie, and the reason was

judgment of the court appears to assume, not only that subsequently invented to justify the law. The Statute an action of commissive waste lay at the common law of Marlbridge afterwards gave an action of waste against

when the instrument creating the estate provided against the “ fermors" of tenements, in which term tenants for it, but that an action for permissive waste lay when life as well as for years were held to be included, such instrument prescribed repair, which is perhaps going and the Statute of Gloucester increased the stringency

a step further. The dictum in Jones v. Hill, that nothing of the remedy. The action of waste was in pro.

is waste except that which would be waste if there were cess of time superseded by the action on the case no stipulation against it, seems difficult to reconcile with for waste, but the principles which governed the whole the decision in Woodhouse v. Walker. Bnt these are,

perhaps, over-subtle refinements. The truth is that the cases where “there is no room for any other appropriajustice of the case required that the person who took tion than that which arises from the order in which the the estate subject to a burthen should be made liable to receipts and payments take place and are carried into the burthen, and the court, finding a loophole in the the account. Presumably it is the sum first paid in ancient doctrine through which they could reach the that is first drawn out." In Henniker v. Wigg (4 Q. B. mark, somewhat ingeniously availed themselves thereof. 792), Lord Denman said that, while the doctrine of It is a curious illustration how our judge-made law, Clayton's case generally speaking admitted of no doubt, through somewhat tortuous ways, reconciles decisions it was equally certain that a particular mode of dealing required by the justice of the cases with which is has to between the parties might entirely vary the case. And in deal with the ancient precedents.

City Discount Company v. McLean (L. R. 9 C. P. 692) the Exchequer Chamber held that the presumption of appropriation laid down in Clayton's case might be re

butted by evidence showing that such appropriation Recent Decisions.

could not have been the intention of the parties.

Under the circumstances of Clayton's case, it was, FOLLOWING TRUST FUNDS INTO BANKING items of debit were extinguished by the earlier items of

said Bramwell, B., “reasonable to hold that the earlier ACCOUNT.

credit. But we must decide every case according to its (In re Halletts Estate, C. A. 28 W. R. 732.) own circumstances." 'WHATEVER may be thought of the course pursued by the

Now, in Pennell v. Deffell and In re Hallett's majority of the Court of Appeal in this case, of Estate, we have a trustee drawing out money for overruling successive decisions of eminent judges of his own purposes from a banking account consisting co-ordinate jurisdiction, there can be little question partly of trust funds and partly of his own moneys. that the result is to bring the law more into

It is obviously more reasonable to presume that harmony with general principles. As Lord Justice

the trustee intended that the drawing out should be Tarner said in Pennell v. Deffell (4 De G. M. & G. at P: unlawfully to draw out the trust funds and appropriate

attributed to his own moneys, than that he intended 388), it is an undoubted principle that, as between cestui them to his own purposes. If so, the presumption laid que trust and trustee, and all parties claimiug under the down in Clayton's case must give way to this evidence trustee otherwise than by purchase for valuable consideration without notice, all property belonging to a

of intention, and the drawings out by the trustee for his trust, however much it may be changed or altered in its

own purposes must be attributed to his own funds. nature or character, and all the fruits of such property, In re Hallett.

This was the decision of the majority of the court in whether in its original or altered state, continues to be subject to, or affected by, the trust. If a trustee pays trust money into a bank to his credit, the account being a simple account with himself, not marked or distinguished in any other manner, the debt thus con

General Correspondence. stituted from the bank to him is one which, so long as it remains due, belongs specifically to the trust, just as the IS IDENTITY OF NAME EVIDENCE OF money so paid would have done had it been specifically

IDENTITY? placed by the trustee in & particular repository and remained there. If the trustee subsequently pays into

[To the Editor of the Solicitors' Journal.] the same banking account private moneys of his own, the Sir, -The learned President of the Probate, Divorce, character of the moneys previously paid in is not altered, and Admiralty Division holds that identity of name is and the court will separate and secure them for the no evidence of identity. Thus in a very recent case, benefit of the cestuis que trust. The difficulty has arisen in which a certificate of a marriage - a bigamous where there has been a series of payments into and marriage--was given in evidence, he ruled, although the drawings out of the banking account by the trustee, so as name of the husband mentioned in the certificate was to leave a balance in the hands of the banker derived identical with that of the respondent, and was by no partly from the trust estate and partly from the private means a common name, and although his profession as property of the trustee. How is it to be ascertained therein stated was the same as that of the respondent, what portion of this balance has been derived from the that the certificate was no evidence that it was the one source, and what from the other ? According to respondent who was married. The petitioner fortunLords Justices Knight Bruce and Turner, in Pennell v. ately was able to give evidence of the identity of Deffell

, this is to be ascertained by applying the rule in the person mentioned in the certificate with the respondClayton's case (1 Mer. 572)— viz., that in the absence of ent, and therefore the President's ruling became any other specific arrangement between banker and immaterial in the particular case; but, as it may frecustomer, the first item on the credit side is to be quently happen that it will be difficult, or at all events, applied to the first item on the debit side, and so on. expensive, to prove identity, if identity of name is not The result is that if the trust fund happens to be paid in accepted as primâ facie evidence of it, it may be useful first, subsequent drawings by the trustee will be con- to refer to some of the decisions on the question. sidered as diminishing, and ultimately it may be entirely In Sewell v. Evans (4 Q. B. 626), it was decided that destroying, the right of the cestuis que trust to have any in an action on a bill of exchange executed by a person part of the balance appropriated to the repayment of the bearing the defendant's name, it was not necessary to trust fund. The principle is applicable, said Lord give evidence strictly identifying the person whose signaJustice Knight Bruce, "notwithstanding the different ture is proved with the party on whom the process has Dature and character of the sums forming together the been served, unless facts appear which raise a doubt of balance due from the bank to the trustees,

and what the identity. Lord Denman said : “In cases where no ever the nature and objects of the cheques.”

particular circumstance tends to raise a question as to The rule in Clayton's case,

as laid down by Sir the party being the same, even identity of name is someWilliam Grant, was not, however, an absolute principle thing from which an inference may be drawn. If the of this kind, but a rule based upon the presumed inten. name were only John Smith, which is of very frequent tion of the parties, in the absence of any

expression of occurrence, there might not be much ground for drawing intention or of circumstances from which an intention the conclusion, but Henry Thomas Rydes are not so can be implied with reference to the particular sums out numerous.

Lord Lyndhurst, C.B., asks why the of which the payments are to be made. It was expressly onus of proving a ve in these cases should be :stated by Sir W. Grant (1 Mer. 608) that it applied in thrown upon the defendant. The answer is, because the

SECOND CLASS.

proof is so easy; he might come into court and have the T. & R. Nicholson, of Morpeth ; and Messrs. Rogersol witness asked whether he was the man.

& Ford, of London. In Hamber v. Roberts (7 C. B. 861), in an action by a Arthur William Stone, who served his clerkship to messenger of the Court of Bankruptcy against James Messrs. Evans & Peacock, of London. Roberts, for fees due from him as petitioning creditor Edmund Henry Parker, who served his clerkship to under a fiat, it was held that the plaintiff proved a Messrs. J. & A. Burton & Scorer, of Lincoln; and primâ facie case by putting in the proceedings under Messrs. Taylor, Hoare, & Taylor, of London. the fiat without proving the identity of the defendant James Carter Harrison, who served his clerkship to with the James Roberts named therein as the petition- Messrs. Hogan & Hughes, of London. ing creditor. Wilde, C.J., said: “I think the evidence Robert Dudley Baxter, who served his clerkship to given on this occasion proved a primâ facie case, and Messrs. Baxters & Co., of London. it would be productive of much mischief to give rise to a John Moore Bayley, who served his clerkship to Mr. doubt by granting a rule.”

William Barber, of Birmingham. Lastly, in Hubbard v. Lees (L. R. 1 Ex. 255), an action of ejectment, a number of certificates of births, baptisms, marriages, and burials were produced from

[In alphabetical order.] parish registers, and were objected to, on the ground Edward Bedford, who served his clerkship to Mr. John that there was no evidence of the identity of the Peed, of Whittlesey; and Messrs. Speechly, Mumford, persons named in them with the persons of the & Co., of London. same name who occurred in the plaintiff's line of John Bickford, jun., who served his clerkship to Mr. proof. The learned judge admitted the evidence. Mr. Robert George Abraham, of Ashburton, Devon; Messrs. Powell, Q.C., moved for a new trial, on the ground Charles & John Kitson, of Torquay; and Mr. George (amongst others) that the certificates were improperly Edward Philbrick, of London. admitted ; and “the court, in granting a rule upon the John Nicholds Cotterell, who served his clerkship to other points, refused it on the objection as to the Mr. George Cotterell, of Walsall; and Messrs. Bower & certificates, saying that the question of identity was Cotton, of London. entirely for the jury, and that they would not allow any Thomas Cross, who served his clerkship to Messrs. doubt to be raised upon this point.”

Buller & Bickley, of Birmingham. Temple, July 21.

J. D. W. George Robert Dransfield, who served his clerkship to

Mr. William Brewis Elsdon, of Newcastle-upon-Tyne ; and Messrs. Pattison, Wigg, Gurney, & King, of London.

Charles Eagleton, who served his clerkship to Mr. Kaw Students' Journal.

Octavius Chapman Tryon Eagleton, of London.

John Thomas Edmonds, who served his clerksbip to

Messrs. Bischoff, Bompas, Bischoff, & Co., of London. INCORPORATED LAW SOCIETY.

John Edward Fox, who served his clerkship to Mr. HONOURS EXAMINATION.

William Tomlinson Page, the younger, of Lincoln. June, 1880.

Basil Edward Hardy, who served his clerkship to

Messrs. Parkers, of London. At the examination fo honours of candidates for admission on the roll of solicitors of the Supreme Meade-King & Bigg, of Bristol.

John Haviland, who served his clerkship to Messrs. Court, the examination committee recommended the

Thomas Heath, who served his clerkship to Messrs. following gentlemen as being entitled to honorary dis

H. T. Smith & Benett, of Devonport. tinction:

Edward Tyrrell Jaques, who served his clerkship to

Messrs. Layton & Jaques, of London. [In order of merit.]

George William Jessop, who served his clerkship to Charles Thwaites, who served his clerkship to Mr. Messrs. Robinson & Longden, of Sunderland ; and Frederick Wm. Fisher, of Doncaster; and Messrs. Van Messrs. Rawson, George, & Wade, of Bradford. Sandau & Cumming, of London.

Galen Jewell, who served his clerkship to Mr. William James White, LL.B., who served his clerkship to Marshall, of Southsea, Hants. Messrs. Barnard & Co., of London.

Matthew Henry Jones, who served his clerkship to Benjamin Alexander Elkin, LL.B., who served his Mr. Robert Knowles, of Liverpool. clerkship to Mr. Robert Dixon, of London.

Thomas Butler Redfearn, who served his clerkship to Frank George Crafter, who served his clerkship to Messrs. Chatham & Son, of Hull. Messrs. Peacock & Goddard, of London.

Francis Shelton, who served his clerkship to Nr. John Hodgson, who served his clerkship to Messrs. William Oliver Reader, of London. E. & E. L. Waugh, of Cockermouth.

Arthur Edwin Sykes, who served his clerkship to Robert Todd, who served his clerkship to Mr. James Messrs. Woodhouse & Peach of Hull; and Messrs. Bell, Girdlestone, of London.

Brodrick, & Gray, of London. James Douglas, who served his clerkship to Messrs. Sydney Thompson, M.A., who served his clerkship to Lingards & Newby, of Manchester; and blessrs. Cun- Messrs. Hollams, Son, & Coward, of London. liffe, Beaumont, & Davenport, of London.

Francis Beaumont Moyle, who served his clerkship to Messrs. Hine-Haycock & Bridgman, of London.

[In alphabetical order.] Walter Herbert Cowl, who served his clerkship to John Cook Bulman, who served his clerkship to Messti. Mr. Arthur Edwin Cowl, of Liverpool and Great Forshaw & Parker, of Preston. Yarmouth.

Waples Canwarden, who served his clerkship to Dr. Alfred Robinson, who served his clerkship to Messrs. Charles Francis Yorke, of London. Drawbridge & Rowntree, of Scarborough; and Messrs. Alexander Joseph Cheadle, who served his clerkship Torr, Janeways, Torr, & Gribble, of London.

to Mr. William Crowther Umbers, of Wolverhampton. Charles John Davison, who served his clerkship to Arthur James Greenop, who served his clerkship to Mr. James William Lambert, of London.

Messrs. Tatham, Oblein, & Nash, of London. David Johnstone, who served his clerkship to Mr. Philip Francis Jackson Kent, who served his clerkship to John Wm. Cooke, of Gloucester; and Mr. James Milward Messrs. Wilkins, Blyth, & Fanshawe, of London, Weightman, of London.

Joseph Stevenson Lawson, who served his clerkship to Charles Atkinson, who served his clerkship to Messrs. / Mr. Charles Bulmer, of Leeds.

FIRST CLASS.

THIRD CLASS.

Addington Newton Olding, who served his clerkship like manner, be marked with the capital letter D., and to Mr. Frederick Kent, of London; and Mr. John notice shall be given to the clerk receiving such affidavit Attenborough, of London.

that it is an affidavit in answer to interrogatories or of Frederick Henry Hooper Orchard, who served his documents (as the case may be); unless this be done, clerkship to Mr. Thomas Floud, of Exeter.

the affidavits may be overlooked in searches made for the James Albert Orchard, who served his clerkship to | purpose of giving certificates. Mr. John George Galloway Redford, of Sidmouth.

Stamps.] All adhesive stamps must be put on the Henry Bishop Priest, who served his clerkship to | first page of the affidavit in the margin. Messrs. Hill & Dickinson, of Liverpool; and Messrs. Exhibits.] Exhibits should be annexed, when pracGregory, Rowcliffes, & Rawle, of London.

ticable, between the leaves of the affidavit for better George Roose, who served his clerkship to Mr. Thomas security. George Everill, of London.

Bills of Sale Affidavits.] Affidavits used on applicaJames Rose, B.A., who served his clerkship to Messrs. ] tion in court or at chambers respecting bills of sale are Phillips & Son, of Chippenham; and Messrs. Whitakers filed in each case under the name of the party by whom & Woolbert, of London.

the bill is given. Frederick William Skardon, who served his clerkship Election Petition Affidavits.). Affidavits used on to Messrs. Edmonds & Son, of Plymouth.

applications under the Election Petition Act are filed Ernest Theodore Smith, who served his clerkship to under the name of the petitioner. Mr. William Henry Smith, of London.

Office Copies left to be Examined and Marked.] All William Ernest Taylor, who served his clerkship to office copies left to be marked must be stamped at the Messrs. Sanders, Smith, & Parish, of Birmingham. rate of 2d. per folio, and must have indorsed on the

James William Henry Walsh, who served his clerkship outside the name of the solicitor who will call for them. to Messrs. Trollope & Winckworth, of London.

Where they are left after the original has been filed, the Hugh Septimus Winter, who served his clerkship to party leaving them must search the index for the index Messrs. Plummer & Fielding, of Canterbury; and number of the original and the year in which it was Messrs. Speechly, Mumford, & Co., of London.

filed, which must be indorsed on the back of the copy. Herbert John Wright, who served his clerkship to Bespeaking Copies to be made in the Office.] Where Messrs. Flavell & Bowman, of London.

office copies are required to be made in the office the The Council of the Incorporated Law Society have | party bespeaking such copy must fill up on the printed accordingly given class certificates and awarded the fol (blue) bespeak form necessary particulars, including the lowing prizes of books :

number of the affidavit in the index book, which he To Mr. Thwaites, the prize of the Honourable Society must ascertain for himself. The stamps in payment of of Clements-inn. Value ten guineas.

such copies must be left pinned on the bespeak form. To Mr. White, the prize of the Honourable Society of Producing Affidavits from the Affidavit Office before Clifford's-inn. Value five guineas.

a Judge or Master, and in Court.] Where it is required To Mr. Elkin, the prize of the Honourable Society of to produce affidavits already on the file, before a judge New-inn. Value five guineas.

or master in chambers, the party must fill up the (white) To Mr. Crafter, Mr. Hodgson, Mr. Todd, Mr. Douglas, bespeak form, and leave it with the officer (where Mr. Moyle, Mr. Cowl, Mr. Robinson, Mr. Davison, Mr. practicable) the day before such affidavit is required. Johnstone, Mr. Atkinson, Mr. Stone, Mr. Parker, Mr. Pursuant to rule 51 of the Rules of April, 1880, no Harrison, Mr. Baxter, and Mr. Bayley, prizes of the original affidavit which is on the file can be produced in Incorporated Law Society. Value five guineas each. any court without an order from a judge or master, but

The council have given class certificates to the candi. office copies may be used. dates in the second and third classes.

Referring to Affidavits on the file for the purpose of The number of candidates examined was seventy-five. drawing the Order.] Where an affidavit has to be re

ferred to in an order, it will be sufficient if the parties produce at the summons and order desk a certificate of filing from the affidavit office, where forms of certificate

are supplied. These must be filled up by the party, and New Orders, Etc.

handed to the filing clerk to be sealed.

Inspecting Original Affidavits.] When it is desired to NOTICE AS TO AFFIDAVITS.

inspect any original affidavit, a fee of 1s. (stamped on a

“search præcipe") must be paid, and on no account is General Directions as to Searching for Affidavits.] All

the affidavit to be removed from the office, or to be affidavits filed in the Central Office are deposited in the

marked or written upon; when done with it should be affidavit room and entered in the index books under the

returned to the officer. initial letter of the suit or matter in which the affidavit

Altering Office Copies.] No alteration, interlineation, is used. There are two distinct sets of index books :

or erasure shall on any account be made upon any office (1.) Affidavits filed in this office by the parties them

copy which has been issued from this office.
selves, and
(2.) Affidavits transmitted from court or chambers or

the master's office which are usually received the
day after they have been used;

It is stated that the Lord Chancellor has received at his But affidavits used on application in the common law private office in the House of Lords a deputation of fifteen chambers and in court may have been filed in the first solicitors and two newspaper proprietors concerning certain instance in this office and office copies of them used on disputes and ungeemly proceedings which have occurred in the application, in which case the original affidavit would the Somerset, Dorset, and Wiltshire County Courts, presided be in the index book (No. 1). An affidavit not found in over by Mr. T. E. P. Lefroy as judge. The deputa. the index book (No. 2) of affidavits transmitted should be tion was introduced by Mr. Montague Guest, M.P., who searched for in the index book (No. 1). Affidavits filed

was accompanied by two of the members for Dorset, and also in the Queen's Bench, Common Pleas, and Exchequer

members for several of the Western boroughs, including Divisions, previous to the 6th of April, 1880, have been

Christchurch, Shaftesbury, and Poole. A memorial setting deposited in the affidavit office.

forth the grievances had been prepared, and addresses In Answer to Interrogatories or of Discovery of Docu.

were delivered in regard to the manner in which the county

courts in Mr. Lefroy's circuits have been conducted. ments.] Every affidavit in answer to interrogatories shall,

| The Lord Chancellor intimated that complaints and when tendered for filing, be plainly marked on the out

representations from various quarters had reached him, side by the party filing it with the capital letter A., and and promised that the matter should receive his careful atevery affidavit of the discovery of documents shall, intention.

Cases of the week.

the legal right of a mortgagee.-SOLICITORS, Edward Hen ley; W. Crook.

PROOF IN BANKRUPTCY - INTEREST - GUARANTEE

ILLEGAL ASSOCIATION_" TRUST"-ASSOCIATION OF MORE PAYMENT OF DEBT BY SURETY.-In a case of Ex parte Bishop,

P, THAN TWENTY MEMBERS-REGISTRATION-COMPANIES ACT, before the Court of Appeal on the 15th inst., the question

1862, s. 4.-In a case of Smith v. Anderson, before the arose whether a proof ought to be admitted in the liquidation

Court of Appeal on the 16th inst., the question arose of the acceptors of a bill of exchange for interest upon a sum

whether the persons interested in a trust, similar to that which a guarantor of the bill had paid under his guarantee.

which existed in the case of Sykes v. Beadon (27 W. R. 464, Bills of exchange, which were drawn and accepted with the

L. R. 11 Ch. D. 170), constituted, within the meaning of secview of raising money for the joint purposes of the drawers

tion 4 of the Companies Act, 1862, a company, association, and the acceptors, were discounted by the drawers with some

or partnership consisting of more than twenty persons, and bill brokers, the money procured by the discount being

“ formed for the purpose of carrying on a business that has divided between the drawers and the acceptors. The bill

for its object the acquisition of gain by the company, associa. brokers re-discounted the bills with their bankers, but did not

tion, or partnership, or by the individual members thereof," indorse the bills. They had, however, given to the bankers

and therefore an illegal association because it had not been a general guarantee of all bills discounted by the bankers

registered under the Act. The trust was constituted by a for them. The acceptors were unable to meet the bills at

deed which declared the trusts of certain stocks and shares maturity, and the drawers and the brokers also stopped pay

of different submarine cable companies, which had been ment. The bankers received a dividend upon the bills from

transferred to, and were standing in, the names of five trusthe estate of the brokers, and they also proved against the

tees. The securities had been purchased by moneys contri. estate of the acceptors for the balance, and the latter claim

buted by a number of persons (wany more than twenty), each was compromised. The brokers' trustee claimed to prove

of wbom received for every £90 which be subscribed a certi. against the estate of the acceptors for the sum which the

ficate for £100 nominal value, and also another document broker's estate had paid to the bankers, and for interest

called a coupon of reversion. The trustees were to receive thereon. The Court of Appeal (JAMES, COTTON, and

the annual income of the securities and to apply it in payTHESIGER, L.JJ.) admitted the proof for the sum 'which bad been paid (vide ante, p. 651), on the ground that,

ment, first, of the expenses of the trust, including theremunera

tion of the trustees, and then in paying interest at the although the brokers did not indorse the bills, there was an implied authority to them by the acceptors to become sureties

rate of six per cent. per annum to the certificate holders on

the nominal amounts of the certificates. The surplus incomefor the payment of the bills. But the court reserved their

was to be employed in the redemption of the certificates, at judgment on the question whether proof ought to be ad

a price not exceeding a specified maximum price. The remitted for interest on the amount paid. On the 15th inst.,

demption was to be effected by purchase of the certificates the court gave judgment admitting the proof for interest from

in the open market or by tender from the certificate bolders, the time of payment down to the commencement of the

and if in those ways the whole of the surplus income of any liquidation. COTTON, L.J., who delivered the judgment of the court, said that, if there were no authority on the point,

1 year was not exhausted, the remainder of the surplus was to there might be some doubt whether interest was payable.

be employed in the redemption, at the maximam price, of

certificates to be drawn by lot. When all the certificates But the cases of Petre v. Duncombe (2 L. M. & P. 107);

should have been redeemed, the securities remaining Hitchman v. Stewart (3 Drew. 271); and In re Swan's Estate (4 Ir. Rep. Eq. 209), were authorities for allowing interest.

subject to the trusts of the deed were to be realized, and

| the proceeds to be divided among the holders of The principle of those decisions was that a person who was in the coupons of reversion in proportion to the nominal valne demnified, either expressly or by implication, against a parti- of the coupons held by them respectively. The trustees cular act ought to be placed in the same position as if the act against which he was indempified bad been done by the

were authorized to sell any of the securities if and when person by whom it ought to have been done.-SOLICITORS,

they should be capable of being sold in the market, and

should be sold, at & premium of not less than thirty per Lawrance, Plews, & Baker ; Travers Smith, & Braithwaite.'

cent. over the price at which they were purchased, and the proceeds of the sale were to be applied in the same way

as the surplas income, though, if it should be so decided by LIQUIDATION PETITION-BILL OF SALE-SEIZURE BY a unanimous resolution of the trustees, and the resolation GRANTEE-INJUNCTION-JURISDICTION-BANKRUPTCY ACT, 1 should be confirmed at a meeting of the certificate holders, 1869, sg. 12, 13-BANKRUPTCY RULES, 1870, R. 260.-In á the trustees were entitled to invest the proceeds of sale in case of Ex parte Bayly, before the Court of Appeal on the the purchase of securities of the same character as the 15th inst., the question arose whether an injunction bad securities originally purchased, to be held subject to the been properly granted to restrain the grantee under a bill | trasts of the deed. There was to be a mesting of the of sale from further proceeding with a seizure which he certificate holders once every year. At the meeting 10 had made of the chattels comprised in his bill of sale shortly person was to be present who did not produce bis oerti. before the filing of a liquidation petition by the grantor. ficate, and persons were to vote in proportion to the value On the filing of the petition & receiver was appointed at of the certificates produced by them. The proceedings of the instance of the debtor, and an interim injunction was the meeting were, so far as might be, to be conducted in granted, which was afterwards continued, on the applica. toe manner prescribed in Table A. to the Companies Act, tion of the debtor and the receiver, until after the 1862. The business of the meeting was to be (1) to retime appointed for the first meeting of the creditors ceive and consider a report from the trustees on the conunder the petition. There was no evidence that any dition and affairs of the trust; (2) to appoint auditors to objection could be raised or was likely to be raised andit the trustees' accounts and to report to the next to the validity of the bill of sale, but before the meeting; (3) to elect new trustees to supply any vacancies Court of Appeal the counsel who appeared for the debtor The plaintiff was a certificate holder, and he brought the and the receiver soggested that when a trustee was ap action, on bebalt of himself and all otber holders of the pointed he might be able to discover facts showing that certifioates, against the trustees. He alleged that the the bill of sale was invalid, and urged that the circum holders of the certificates and the defendants formed an stances were suspicious ; and they contended that the illegal association, under section 4 of the Act, the trast injunction ought to be continued until a trustee bad been not having been registered, and he claimed to have the appointed, so that he might have an opportunity of making trusts of the deed, or such of them as were not illegal, a case against the bill of sale. On the other side it was carried into execution under the direction of the court, and urged that the court had no jurisdiction to interfere with to have the securities subject to the trusts of the deed the legal rights of a mortgagee in possession. The divided among the certificate holders in proportion to their Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.) said respective interests. Jegsel, M.R., followed his own prethat it was annecessary to decide whether there was vious decision in Sykes v. Beadon, and held the “trust" to be jurisdiction, for the court could not, in the absence of any an illegal association, and he ordered that its affairs should evidence, even as to belief, impeaching the bill of sale, on | be wound up. The Court of Appeal (JAMES, BRETT, and a more suggestion that possibly the trustee, when ap COTTON, L.JJ.) reversed this decision. They were of pointed, might bs able to make out a cage, interfere with | opinion that there was no association between tha corb

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