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court, at the trial of the cause"; and it matters not should take possession of a colliery and plant, and whether the jurors, on whom such attempt is made, give should provide the balance of the money necessary to any verdict or not, or whether the verdict given be true pay off the legacies then payable, as well as those which or false (1 Hawk, P. C. 466).
should from time to time becomo due. Upon this basis certain of the legacies were paid in full, and the executors, having paid full duty upon all the legacies,
passed their residuary account showing all the legacies ADMISSION OF ASSETS BY EXECUTOR. as paid in full. The eldest son subsequently failed to We briefly referred last week to the ancient doctrine provide sufficient funds to meet all the legacies, and that where an executor voluntarily pays one or more
there were, in fact, insufficient assets to meet the whole legacies, he is presumed to have received sufficient of the testator's liabilities. One of the younger children, assets to discharge all the rest. It may be worth while
when he became entitled, claimed payment in full to notice, somewhat more at length, this old rule, and of his legacy from the executors, upon the ground the modifications it has received in recent times. The of their having admitted a sufficiency of assets. Vicerule, of which Sir J. Strange, M.R., said there were
Chancellor Hall decided against the claim on the “several cases in Eq. Abr., is that whenever an executor ground (1) that the payment of legacies could always pays a legacy, the presumption is that he has sufficient be explained by the executor. “ With reference to the to pay all legacies; and the court will oblige him, if payment of one legacy,” he said, “ being an admission of solvent, to pay the rest, and will not permit him to assets for every other legatee, I think this observation bring a bill to compel the legatee, whom he voluntarily may fairly be made, that although this is very old law, paid, to refund; although, if the executor proves in.
and you can go back to Lord Hardwicke's time for an solvent, so that there is no other way, the court will authority, the tendency of modern decisions has been to admit a bill by the other legatees to compel that
deal fairly and justly with these cases, and not by a legatee to refund” (Orr v. Kaines, 2 Ves, Sen. 193). It
mere unintentional admission of assets by executors to was, moreover, laid down by Lord Eldon that an subject them to liabilities which they have never conadmission of assets could never be retracted unless a
templated or meant to undertake. You have to examine case of mistake were most clearly established (Drewry the facts of the case, and to deal with it fairly and v. Thacker, 3 Swanst., at p. 548). The course of de properly.” And so dealing with this case, he held cision in subsequent years has been towards the modifica that the payment had been satisfactorily explained cation of these curious doctrines. Thus it has by the executors as being made in pursuance of an arbeen held that an executor who pays legacies rangement which was based on the supposition that the - for instance, legacies to servants-on his
legatees could not be paid in full out of the assets; responsibility, and without reference to the assets, is hence, no one could be deceived as to the amount of the not bound to pay all the legacies under the will
assets. (2) It appeared that the legatee claiming (Cadbury v. Smith, L. R. 6 Eq., at p. 41). And if
against the executors was a minor up to a very recent the circumstances on which the executor built his ad
period, and the Vice-Chancellor thought “ could not mission fail him, then the admission fails also; he
have been misled as to his prospects or position in life.” cannot be bound by an admission made under circum
And (3), there was the further circumstance that a claim stances with which he was not acquainted. Hence, if
had arisen against the estate, which had not come to the new claims arise after an admission of assets, the execu
knowledge of the executors at the time they passed the tor will not be bound by such admission (Payne v.
residuary account. Little, 22 Beav. 69). In any case, according to Postle
It may be hoped that we have heard the last of any thwaite v. Mounsey (6 Hare, 33, note), it is open to the
attempt to apply the old rule in its harsh and unreasonexecutor who has admitted assets, by paying a legacy or
able form, but executors and their advisers will do well to otherwise, to explain that the payment has been made keep it before their minds. by mistake, or for other reasons. And, in that case, Vice-Chancellor Wigram went so far as to say that “it would be difficult to hold that the payment of one legacy would of itself bind the executor to pay all the
THE REPORT OF THE COMPTROLLER IN legacies given by the will." The basis of the doctrine, as of the rule with reference
BANKRUPTCY. to executors' assent, on which we commented last week, It is rash to prophecy on a matter as to which we have would seem to be that the other legatees are entitled to so often been disappointed ; but it does seem probable act on the faith of the executor's admission of assets that next session will not be allowed to pass without (see Hutton v. Rossiter, 3 W. R. 97, 7 De G. M. & G. some bankruptcy legislation; and it may be worth while il). If the executor pays one legacy, the other lega- to notice the defects in the present law which are pointed tees may fairly assume that he has satisfied himself that out by the comptroller in his report just printed, conthe assets are sufficient to pay all the legacies, and it sidering afterwards how far these are proposed to be would be unjust to allow him by his conduct to deceive remedied by the Bills now before Parliament for the the other legatees. But if this is the foundation of the amendment of the law of bankruptcy. rule, it is obvious that it must be open to the executor The drift of the present report, as of many of its to show that the circumstances under which the payment
predecessors, is this. The returns relating to bankwas made were such as were not calculated to deceive, ruptcy proper present nothing calling for particular and ought not to have deceived, the other legatees; and remark, except that the costs are this year above the also to show that in point of fact the other legatees average and the assets below the average. The pro were not deceived, and did not regulate their conduct visions of the Act for preventing abuses by debtors and upon the assumption that there were sufficient assets to trustees, where they are applicable, work fairly well. pay their legacies in full.
But they are only applicable to about 7 per cent. of the The recent case of Morewood v. Currey (28 W. R. whole number of cases of bankruptcy, arrangement, and 213) shows the progress which has been made towards composition. In 93 per cent. of these cases debtors and the establishment of this reasonable modification of the their agents escape the provisions of the Bankruptcy old rule. In this case, the personal estate of the testator Act relating to the examination and discharge of the being insufficient to meet his liabilities and the legacies, bankrupt, and to the accounts, charges, and conduct of an arrangement was made between the eldest son, the the agents emplayed by him. The result is that abuses executors, and such of the parties interested as were are rampant. The number of compositions not exceed. then entitled to their legacies, whereby it was agreed ing one shilling in the pound has increased from 76 that the eldest son, electing to take under the will, in 1870 to 1,056 last year, and the number of composi
tions exceeding seven and sixpence in the pound has diminished from 565 in 1870 to 513 last year. “Having
Recent Decisions. regard to the state of trade during the last ten years," says the comptroller, “ and its apparent effect on bank
CONDITIONS OF SALE. ruptcy proper, on Scotch sequestrations, and on the better class of compositions,” there should have been about I (Lawrie v. Lees, C.A., 28 W. R. 779; Jackson to Oak5,000 arrangements and compositions last year. Instead
shott, V.C.H., 28 W. R. 794.) of this there were nearly 12,000. Of these 7,167 were In the first of these cases the action was brought to set liquidations, and 4,809 compositions.
aside a contract of sale of leasehold property, and the The ultimate cause of this is, of course, to be defendant counter-claimed for specific performance. One found in the indifference of creditors. The majority of the conditions provided, as usual, that the purchaser of the creditors is commonly represented by proxies should be deemed to have full notice of the covenants held by, or in the interest of, an agent; and in the lease; and another was the ordinary condition the position of a trustee representing the majority that “the production of the last receipt for rent shall of creditors in a liquidation is, as the comptroller be taken as conclusive evidence of the due and satisremarks,“ singularly desirable; he can make his factory performance of the lessee's covenants contained own arrangements with the debtor for a discharge, in the lease by which the premises are held, or the dispose of the funds, vote his own remuneration, tax his waiver of any breaches of the same covenants up to the solicitor's bill of costs or not, as he prefers, audit his time of the completion of the purchase, whether the own accounts at such time and in such manner, and lessor was cognizant of such breaches (if any) or not." impose such terms and conditions as he thinks fit, and, The purchaser objected that a continuing breach of finally, grant himself a 'release,' discharging him from covenant had been committed, and it was contended all liability in respect of any act done or default made | that, although the above condition covered all breaches by him as such trustee.” Under the Act the creditors of covenant down to the date of completion, the court are to see to these matters ; but if one thing is more would not force on the purchaser a lease which might clearly proved than another it is that whatever is left to be determined by the landlord's re-entry the day after creditors is left undone. It is a fixed maxim with the completion of the purchase. In other words, if this creditors that it is useless to throw away valuable time contention had succeeded, the condition relating to the after lost money, and the result is that the proxy system last receipt for rent being conclusive evidence, would has grown to the proportions of a gigantic abuse. Every | be inoperative whenever there was a continuing breach of proxy has, says the comptroller, a money value, "and covenant. a single proxy will sell for a considerable sum when The Court of Appeal refused to accede to this view, and needed to carry or to prevent a resolution. It is the Lord Justice Bramwell seized the opportunity to enforce regular practice in some parts of England to hold his favourite lesson that " a bargain is a bargain, and “knock-outs,' or meetings of toutiag agents, for the should be observed, and if this purchaser has agreed purpose of arranging that the proxies they have collected that he will take an arbitrary substitute, or something among them shall be used in the interest of one of their in lieu of evidence that the covenants have been pernumber ; but such arrangements are more commonly formed, or that breaches have been waived, he should be made at the first meeting of creditors in a liquidation, bound by it; because people must be taught by suffering or before the registration of the resolutions. Stray not to enter into improvident bargains from which in proxies are bought from the holders; but these days I hope they will not be released by their being where two or more agents hold each a sufficient number set aside.” With submission, that was not the point to prevent the other carrying the resolutions, a joint raised in the case. The purchaser was willing to obtrusteeship may be agreed upon, though more often one serve his bargain that the receipt should be conclusive becomes trustee on the usual terms,' an expression evidence of the performance of covenants up to the time which evidently indicates a very usual transaction, and of completion; the question was whether the court means that the trustee shall pay to the other one-third would lend its assistance to compel a purchaser to buy of whatever he can make out of the trusteeship."
an interest which might be determined immediately What then is the moral of the report? That the ex- | after completion. The result of holding that a conisting system shall be wholly re-modelled or swept away? tinuing breach is a bar to specific performance would Surely not, for, according to the report, it works not be inconvenient, and contrary to the general underunsatisfactorily wherever it has fair play. What is standing, and the other members of the court based wanted is to extend to liquidations and compositions the their decision mainly on this ground. precautions against abuse adopted in the case of bank | The question may perhaps ba raised whether Howe? ruptcies. There should be fuller and earlier informa. v. Kightley (4 W. R. 477, 21 Beav, 331) is still law? tion given to the creditors as to the affairs of the debtor; | It will be remembered that in that case the above conhis control over liquidation proceedings should be dition was held not to cover breaches of covenant checked, the abuse of proxies restrained, and the pro. committed by the vendor after the contract and before visions as to costs, trustees' remuneration, and trustees' completion. Lord Justice Baggallay seems to intimate accounts should be made more effective. We propose that the decision is still law, and it certainly seems to to consider hereafter the mode in which the Bank us that there is nothing in the recent case to show that ruptcy Bills now before Parliament deal with these a vendor may not, by his conduct in committing breaches various matters.
of covenant after the contract, disentitle himself to obtain the assistance of the court.
Jackson to Oakshott turned upon the condition relating to rescinding. The members of the Bir
mingham Law Society hold a high rank for real The Paris correspondent of the Daily News says :-A property knowledge and conveyancing skill; but curious law point has been decided by the Court of Cassa
this case brought to tion in the case of Abadie, & murderer, who, by the caprice
light a curious flaw in their of a Paris jury, obtained a verdict with
commor extenuating cir
form conditions-viz., the omission of the cumstances.' Being indicted for a murder previous to the
ordinary words specifying objections or requisitions "28 one for which he was convicted, the counsel demurred that
to title, abstract, evidence of title, particulars, conditions, all previous crimes were merged in the conviction. The
conveyance, or otherwise." The condition began with a Court of Cagsation holds that technically a trial may be
reference to objections and requisitions as to title, and bad, if only to give the right to the prisoner to clear bimself,
Vice-Chancellor Hall held that the connection in lanbut probably the objection will be decided on its merits in guage between the latter part of the condition and the the Assize Court.
iormer part showed that the same thing was still being
referred to-i.e., objections and requisitions as to title; hence, that the condition did not enable the vendor to Tescind on an objection relating to conveyance.
CALL OF SOLICITORS TO THE BAR.
[To the Editor of the Solicitors' Journal.] Reviews.
Sir,-No one can read the account of the meeting at
the Law Institution without perceiving that many MAGISTERIAL LAW.
members of the so-called “lower" branch of the proA MAGISTERIAL AND POLICE GUIDE : Being THE STATUTE
fession would be quite contented to leave things as they
are if only that hateful adjective could be got rid of, LAW, INCLUDING THE SESSION 43 VicT., 1880, WITH Notes AND REFERENCES TO THE Most RECENTLY
and that, totally forgetful that the division of the proDECIDED CASES RELATING TO THE PROCEDURE, JURIS
fession is one of labour and of labour only, and that the DICTION, AND DUTIES OP MAGISTRATES AND POLICE
word “lower" is simply applied as a distinguishing AUTHORITIES, &c. By HENRY C. GREENWOOD, Stipendary
term to the branch, and not to the individuals composMagistrate, and TEMPLE C. MARTIN, Chief Clerk of
ing it, they are fighting against a shadow. of the Lambeth Police Court. SECOND EDITION.
When once, however, this mistake has been pointed Stevens & Haynes.
out, and it is clearly understood that socially a solicitor
is esteemed in no way lower than a barrister (and, inThe main changes in this edition are, of course,
deed, to do so would be absurd when one considers that occasioned by the Summary Jurisdiction Act, which the some even of the judges have sons or brothers who are authors have embodied in their introduction. The rules solicitors), a little calmer attention will be given to the under the Act, which are printed without the schedules,
consideration of the difference between the Law Society do not appear to be referred to in the introduction, no | and the Inns of Court. doubt owing to their appearance while the work was Now I think I may venture to say that no soli. going through the press. With this exception, and
citor of any standing will contradict me when I the omission on p. 4 of a reference to the case of R. assert that there is no similarity between the duties V. Millidge (27 W. R. 659), relating to disqualification which devolve upon a barrister and those which fall to of justices as being interested parties, we have not the lot of a solicitor. The barrister aims at being a observed any omission in the statutes or cases passed skilful advocate and a lawyer, in the strict sense of the and decided since the last edition. It would probably word, and his time is employed in the pursuit of these conduce to the convenience of readers if the cross refer objects, and these objects alone. But the duties of a ences were somewhat fuller, so as to give the Act and solicitor are widely different, and if their influence section referred to, and an idea of the subject-matter on the community be taken into account, far more of such section. For instance, under the head“ dogs," important than those of the barrister. He has to be a a cross reference is given to “ Police (Metropolitan).”
man of sound common sense and vast knowledge of It would save trouble if there were added “2 & 3 Vict. mankind, and, unlike the barrister, he has to advise his c. 47, s. 47 (dog-fighting); s. 54 (2) (ferocious dogs),” clients, not according to strict law, but according to and so on. But the work as it stands is a very convenient what, irrespective of law, are their best interests—which and well-executed guide to magistrates.
is far more difficult-and it is well known that many of
the most successful achievements in solicitors' offices are HAYNES'S OUTLINES OF EQUITY.
accomplished by acting contrary to the advice of
counsel. A solicitor, moreover, has to conduct all OUTLINES OF EQUITY ; BEING A SERIES OF ELEMENTARY
important negotiations on behalf of his clients; he must LECTURES ON EQUITY JURISDICTION, &c. By FREEMAN know when to give and when to take; and in this again OLIVER HAYNES, Barrister-at-Law. Fifth Editiou.
he is guided, not as barristers would be by the rights of William Maxwell & Sons.
their clients, but according to their true welfare, and it The last edition of this admirable little book, to which cannot be doubted that a good solicitor is a far more many of our readers have been indebted for their first useful, and therefore, morally, a more honourable, ideas of equity jurisdiction, was published on the eve of | member of society than a good barrister. the coming into operation of the Judicature Act. The What, then, are the respective trainings which the present edition has been adapted, mainly by excision, to young barrister and the young solicitor go through ? the changes introduced by that Act. Lectures 2 and 3, The whole time of the former is taken up with the study relating to the general history and constitution of the of strict law, whereas, as soon as the articled clerk has equity courts, and the course of a suit in equity, have gone through his Stephen or his Broom, he is at once been omitted, and notes have been added explaining and taught to seek the true interests of his clients, to learn the qualifying statements in the lectures which are not in art of negotiation, and consequently, although, perhaps, accordance with the present state of the law. The book
unknown to himself, to study mankind. This being so, was for many years the best equity primer in existence, can it be seriously contended for a moment that a soli. and only needs a rather more extensive remodelling to citor, having been thus trained, can without any further resume its former position.
study become an efficient counsel, either to practise in the courts where justice is administered according to strict law, and not according to what may happen to be
the best interests of the suitors, or to advise upon those The report of the Select Committee appointed to inquire rights which it has been his constant practice to disinto the administration, operation, and effect of the Con regard ? tagious Diseases Acts states that the advanced period of the
That solicitors themselves do not consider that he session at which they were appointed renders it impossible
can is seen from the fact that in the county courts where for them to enter effectually upon the inquiry, and they, therefore, recommend their re-appointment next session.
they have a right of audience they invariably think it An English institution, says the London correspondent of
advisable to employ counsel when the magnitude of the the Manchester Guardian, has been transferred to the
case will allow it. Kbyber. The Gazette announces the appointment of justices
No doubt men who have, by going to the wrong branch of the peace for the Khyber Pass and of the lands immedi
of the profession, made a mistake-or rather, I should ately adjoining the Pass on either side of the roadway. The
say, for whom the mistake has been made--are to be political officer in charge and the officer in military commaud
sympathized with, and yet not more so than a doctor are to be justices of the peace, committing European subjects who would have done better as a clergy man, or vice for trial to the chief court of the Punjab.
versâ ; but there is no reason wlay, on their account, th:
duties of counsel should be intrusted to those who are Perhaps some of your readers interested in the matter unfitted to perform them. It is no answer to this to may be able to offer a suggestion applicable to the say that these men could pass the requisite examination, point.
C. THORP. as it is the three years' study, and not the examination, 18, Garrick.street, Covent Garden, Aug. 5. which has ever been regarded by the benchers as the qualification for a call to the bar, and a student often has to keep three terms after his examination before he can be called.
New Orders, Etc.
LONG VACATION NOTICE.
High COURT OF JUSTICE, CHANCERY Division, [To the Editor of the Solicitors' Journal.]
During the vacation, until further notice, all applicaSir, -A curious illustration of the anomaly and con tions which may require to be immediately or promptly fusion in respect to the new indorsement of costs on heard are to be made to the Right Hon. Lord Coleridge, writs of summons occurred to me on the 30th ult. The Lord Chief Justice of the Common Pleas, or the Hon. form given in the schedule to the Rules of April last, Baron Pollock. One of the Vacation Judges will sit in after providing for particulars of claim, proceeds as the court of Vice-Chancellor Malins, at Lincoln’s-ing, follows:-“ And £ (or such sum as may be at eleven o'clock, on Wednesday in every week, com. allowed on taxation) for costs. If the amount claimed mencing on Wednesday, August 18, until further notice, is paid to the plaintiff or his solicitor or agent within for the purpose of hearing such applications. No case four days from the service hereof, further proceedings will be placed in the court paper unless leave has been will be stayed.” The words in parentheses are new, and previously obtained or a certificate of counsel that the the word or” is printed in italics, while in the forms case requires to be immediately or promptly heard, and sold by the Inland Revenue at the Central Office, the stating concisely the reasons, is left with the papers. whole of the words in parentheses are italicized. Application for leave to give short or other special notice Law stationers, however, print, the whole of the indorse- of motion may be made at the chambers of Vice-Chan. ment in Roman type. A writ issued by me was so cellor Malins, 12, Staple-inn, Holborn. The necessary printed, and failing to effect personal service, the usual papers relating to every application made to the Vacation order for substituted service was obtained. On the Judges are to be left with or addressed (under cover fourth day after a copy of the order and writ were posted, marked outside " Chancery Vacation Papers") to the the defendant's solicitor called at my office, and in my officer in attendance, Chancery Registrar's chambers absence he left the amount of debt and costs as indorsed (room 136), Royal Courts of Justice, before one o'clock on writ (£2 125. 6d.), the costs then incurred amounting on the Monday previous to the day on which the applica. to about four guineas. On my return I addressed and tion is intended to be made. In any case of great sent a letter to the defendant's solicitor requesting him urgency the brief of counsel is to be sent to the judge to send me the difference, threatening further proceedings by book post or parcel, pre-paid, accompanied by office unless paid. An appearance was then entered, and as copies of the affidavits in support of the application the debt was paid, I, with a view to obtain the and also by a minute, on a separate sheet of paper, master's decision, issued the usual summons for signed by counsel, of the orde
he may consider the judgment under order 14, when
of the applicant entitled to, and an envelope capable of reablest masters held that the word “or," having ceiving the papers, and addressed as follows:-"Chanbeen printed in Roman type on the writ, gave the cery Official Letter.—To the Registrar in Vacation, defendant the option of either paying the costs indorsed Chancery Registrar's Chambers, Royal Courts of Justice or of having them taxed, and the defendant having London, W.C." On applications for injunctions of elected to pay the amount indorsed within four days writs of Ne exeat Regno, in addition to the above, a after service of the order for liberty to proceed, he would copy of the writ and a certificate of writ issued must make an order staying further proceedings without costs also be sent. The papers sent to the judge will be reto either party. The master stated that on looking care turned to the registrar. The address of the judge for fully at the forms of indorsement in the schedule he had the time being acting as Vacation Judge in the Chancery no hesitation in saying that the intention of the framers Division can be obtained on application at the Chancery was that either claim for costs might be used--that is, a Registrar's chambers. The chambers of Vice-Chan. fixed sum, or such sum for costs as the master on cellor Malins will be open on Tuesday, Wednesday, taxation should allow, but nct both. This view appears Thursday, and Friday in every week from eleven to one to me to be a correct reading of the words of the present o'clock.-12, Staple-inn, July 31. indorsement, which places solicitors in a difficulty. By order 3, rule 7 of the Judicature Act, 1875, “where the plaintiff's claim is for a debt, or liquidated demand only,
CERTIFICATES FOR SALE AND TRANSFER. the indorsement, besides stating the nature of the claim,
CHANCERY DIVISION. shall state the amount claimed for debt and costs respec Long Vacation, 1880.- Notice to Solicitors. tively, and shall further state that, upon payment there. of within four days after service, further proceedings will
On and after the 20th of August, the registrar in be stayed.” Provision is thus made for taxation of such
attendance will, for the purpose of facilitating vacation costs, and if more than one-sixth be disallowed, plaintiff's and Friday
in every week, but the certificates should be
business, sign certificates for sale and transfer on Tuesday solicitor shall pay the costs of taxation. The decision of the master that the indorsement for costs may either and on Tuesday in every week the registrar will make
left for examination at least one clear day previously ; be for a specific sum, or for a sum which may be allowed on taxation, but that both should not be used, will not
alterations necessary in orders to be acted on by the relieve the profession from the obligation of the rule. Chancery Paymaster. The registrar will not attend on For instance, if a writ were issued with no certain sum
Saturdays and Fridays, unless on notice of any intended for costs, either the rule would become a dead letter or
application to the judge for an order of an urgent the proceedings would be set aside for irregularity; and,
R. H. LEACH, having regard to the consequences or the penalty in the
H. LATHAM, event of more than one-sixth being disallowed, it would be neither wise nor prudent to indorse a larger sum in
Vacation Registrars. anticipation that in every case an order for substituted
Chancery Registrar's Chambers, Royal Courts of Justice. ervice would be required.
VACATION TAXING MASTER.
be made against the defendant. Reliance was placed on The Vacation Taxing Master will, at the request of the
section 35 of the Act, 7 & 8 Vict. c. 101, which, by secparties, take any reference in which the payment or distri.
tion 60 of the Education Act of 1870, is made applicable to bution of money onder any order made on or after the
the audit of the accounts of a school board ; and it was 19th of Jaly last depends upon the taxation of costs.
contended that, if nothing was said abont the auditor's costs, that section wonld enable him to get his costs paid
out of the rate. The Court of Appeal (JESSEL, M.R., and EXTRADITION ACT.
BRETT and COTTON, L.JJ.) held that they had no jurisdic
tion to do what was asked. An Orger in Council is published in the Gazette of
JESSEL, M.R., said that, Toesday giving effect to a law of the Legislature of the
though in the old Court of Chancery orders were made Transvaal (the Extradition Law, 'Transvaal, 1880), extend
for the payment of the costs of an unsuccessful defendant ing the provisions of the Extradition Acts to that Province.
out of a fund which was under the control of the court, at common law it was never the practice to give costs to an unguccessful defendant; and section 35 only provided for the payment of costs of the person prosecuting the certiorari
out of the rates when the decision of the auditor was, Cases of the U eek.
overruled. The court, however, added to the order a direction that it was to be without prejudice to any question
as to the right of the defendant to be reimbursed out of DISSOLUTION OF PARTNERSHIP-SALE OF ASSETS AND
the rate the costs which he was ordered to pay.-SOLICITORS GOODWILL TO ONE PARTNER-RIGHT OF OTHER PARTNER | Gedge, Kirby, f Millett; Sharpe, Parkers, & Co. TO DEAL WITH OLD CUSTOMERS.-In a case of Leggott v. Barrett, before the Court of Appeal on the 27th alt., the question arose whether, after a dissolution of partnership,
PRACTICE-CROSS-EXAMINATION ON AFFIDAVIT-SUMMONS and a sale of the assets and goodwill to one of the partpers, who was to continue the business alone, the otber
TO VARY CHIEF CLERK'S CERTIFICATE-ORD. 37, R. 2
DISCHARGE OF SEQUESTRATION—COSTS.—In a case of The partner could be prevented from dealing with any of the | Republic of Costa Rica v. Strousbera, before the Court of customers of the old firm who chose voluntarily to come
Appeal on the 28th ult., the question was raised whether to him. The plaintiff and the defendant had carried on business in partnership together at Bradford.
the power given to the court by rule 2 of order 37 They
to order the attendance for cross-examination of the person agreed upon a dissolution, upon the terms that the stocka
making an affidavit “upon any motion, petition, or sumin-trade, book debts, and other assets of the partnership,
mons” applies to a summons to vary a chief clerk's certifi. and the goodwill of the business, should be taken by the cate. The court (JESSEL, M.R., and BRETT and COTTON, plaintiff, who was to continue the business on his own L.JJ.) held that it does. Another question was what account, The defendant was to retire from the business,
order ought to be made as to the costs of a sequestrator when and he agreed not to commence a similar businees in the court of Appeal discharges an order for a sequestration, Bradford, or within ten miles thereof, for ten years from which it holds to have been rightly issued in the first instance, the date of the dissolution, except in Leeds. The plaintiff on the ground that the object for which it was granted has was to pay to the defendant £2,000 for his share and been attained. It was urged that the party who succeeds interest in the business, stock.in-trade, and other assets. j on appeal in getting the sequestration discharged ought not The plaintiff paid the £2,000, and a formal deed of disso to pay the costs of the sequestrator between the date lotion was executed. The defendant had subsequently | of the refusal of the judge of first instance to disset up a similar business in Leeds, and the plaintiff alleged charge the sequestration, and the date of the order on the that he had been soliciting the customers of the old firm ; appeal. The court, however, held that the sequestration and he claimed an injunction to restrain the defendant could be discharged only on the payment of costs, other than from doing this, and also from actually dealing with any | the costs of the appeal. The latter costs were made costs in customers of the old firm. Upon an interlocutory motion the action.-SOLICITORS, Freshfields f: Williams; Lee, Tlousefor an injunction until judgment in the action, Jessel, M.R., | man, d Brodie. was of opinion that, inasmuch as the defendant had sold his share in the goodwill of the business, he was not entitled even to deal with customers of the old firm who
MEETING OF CREDITORS UNDER LIQUIDATION PETITION came to him without any solicitation on bis part. And bis
VALIDITY OF RESOLUTIONS—RIGHTS OF ABSENT CREDITORS.lordship accordingly granted the injunction asked for.
In a case of Ex parte The Swaledale Banking Company, before The Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.)
the Court of Appeal on the 29th ult., the question arose held that, as the defendant had not entered into any ex
whether a creditor, whɔ was not present at a meeting of press agreement not to deal with customers of the old
creditors under a liquidation petition,could be heard to object firm who might come to him voluntarily, the injunction
to the resolutions which had been passed by the creditors must be confined to preventing the solicitation of the old
who were present. The objection to the resolutions was customers. -SOLICITORS, R. Smith & Wilmer ; Wynne
that a proper quorum of creditors was not present at the Baxter f Rance.
meeting, and this depended upon the question whether one of the persons who was present, and who had voted as a
creditor, had a proper proof of debt upon the file. The Costs-PUBLIC FUNCTIONARY_PAYMENT OUT OF FUND
court (JAMES, BRETT, and Cotton, L.JJ.) said that though -7 & 8 Vict., c. 101, s. 35-ELEMENTARY EDUCATION a creditor who was not present at & meeting was bound by Act, 1870, s. 60.-In á case of The Queen v. Sir Charles
the resolutions passed at it, if they were validly passed, Reed, before the Court of Appeal on ths 28 h ult., the
there was no obligation upon him to attend the meeting, question arose wbether the court had jurisdiction to order
and he was entitled, though he had not been present, to the costs of a publio functionary to be paid out of a par.
question the resolutions, on the ground of the illegality of ticular fund. The defendant was the chairman of the
proceedings.- SOLICITORS, Ullithorne, Currey, f Villiers ; London School Board, and represented the poard in the
M. Abrahams & Co. proceedings, which were by certiorari. The Government auditor had disallowed certain items in the accounts of the board, and the question was whether those items ought to PRACTICE - Costs — SUCCESSFUL PLAINTIFF — ACTION have been allowed. The Queen's Bench Division held that | TRIED BY JURY - LIBEL - ORDER 55.-In a case of the items ought to have been allowed; but the Court of Harnett v. Vise, before the Court of Appeal on the 2nd Appeal at Westminster reversed this decision, holding inst., a question arose as to the power of a judge to deprive that the disallowance was right. The order of the Court & successful plaintiff of his costs of the action. The action of Appeal, as drawn up, made the defendant personally | was for libel, and the jury found a verdict for the plaintiff, liable for the costs of the auditor, and made no provision with £10 damages. The defendant's counsel then applied to for the defendant's own costs. An application was made Huddleston, B., who tried the action, to deprive the to vary this order by directing that the costs should be plaintiff of bis costs, and his lordship acceded to the paid out of the school board rate, or that, at least, no application, on the ground that the letter, which the jury personal order for payment of the auditor's costs should had found to be a libel, bad been brought about entirely