Page images

of this number 186,806 were discharged on termination 56 received corporal punishment, 192 were sent to pun.. of their sentence, others were removed to Government ishment cells, and 11,816 were punished by reduction and other prisons, reformatory schools, and lunatic of diet, and 6,835 by loss of class. The establishments asylums; 2,006 were let out on bail, 6 escaped, 12 com of the convict prisons show a collective total of prisor mitted suicide, 178 died, and 15 were executed. At the officials of 1,731, consisting of 27 governors, deputy end of the year 18,979 remained in prison, of whom 298 governors, lady superintendents, and deputy superinare classed as debtors. Those remaining at the end of | tendents, 25 ministers of religion, 69 schoolmasters and the year were 189 less than at the end of the previous mistresses, 21 medical officers, 11 stewards, 81 clerks, year. The greatest number of prisoners under confine- and 1,497 subordinate officers, servants, ard guards. ment at one time was 24,107, and the daily average The total cost of convict prisons during the year 19,818. Prisoners committed to hard labour numbered amounted to £357,126 198. 6d., being an average of 134,199, showing an increase as compared with 1878 of £33 49. 3d. per head, and an increase of 148. 7d. as 7,573. The number of deaths in prison from natural compared with the amount for the previous year. Convict causes was 178, showing an increase of 10. There were labour for the year is valued at $214,583 28. 2d., and 143,764 cases of slight indisposition, 4,407 infirmary the incidental receipts amounted to £1,470 14s. 5d., and cases, and 163 cases of insanity. In the total of these deducting these amounts the net cost of convict prisons three items there is an increase of about 39,000 over the was £141,073 28. 11d., and the net annual cost per number of the previous year, and chiefly under the prisoner £13 28. 5d. In the previous year the net annual heading of “Slight indisposition.”

cost per prisoner, after deductions, was £12 10s. 8d. Punishments for infraction of prison discipline were inflicted in 49,684 cases, classified as follows :

REFORMATORY SCHOOLS. Corporal punishment .


In the whole of England and Wales there are 54 Punishment cells . .

. 2,320 reformatory schools to which, during the year 1878.9, Dietary punishment

. . 24,693 1,250 offenders were committed, being less by 334 than Loss of stage or privilege

22,550 in the preceding year. At the commencement of the

year the total number in reformatory schools was 4,883,

49,684 and to this number we add the 1,250 committed during This number of punishments exhibits a decrease of 9,628 the year, 24 received from other schools, 10 from prison, as compared with the previous year.

16 re-admitted after absconding, and 101 returned

from licence or leave of absence ; making a total of 6,284 PRISON ESTABLISHMENTS.

remaining in custody at the end of the year. These * Officers of local prisonsnumbered 2,202, classified as fol. were dealt with as follows:-139 were discharged by lows :--Governors and deputy governors, 88; chaplains order from the Secretary of State, 433 on completion of and assistant chaplains, 97; surgeons and assistant their term, 756 were permitted out on licence or leave surgeons, 72; clerks, schoolmasters, and schoolmistresses, of absence, 36 absconded and were not re-taken, 15 were 205 ; matrons, 56; warders, 1,313; and other sub-officers, committed to prison for refractory conduct, 25 were 371. The total number gives an average of one officer to removed to other schools, and 42 died; making a total, 8.9 of the daily average of prisoners, being the same of 1,446, and leaving 4,838 in detention at the end of proportion as in the previous year.

the year, or 45 more than at the commencement. Of

those committed during the year, 40:6 per cent. had been Cost OF LOCAL PRISONS.

previously committed, 478 could neither read nor write, In the cost of local prison establishments the principal 672 could read or read and write imperfectly, 100 could headings are for “ Cost of staff," £221,668 16s. 4d.; | read and write well, and none are classed under the “Maintenance of prisoners,' £164,742 16s. 7.; and heading “ Superior instruction.” “ Other expenses," £36,437 16s. 11d. To these sums The total amount payable by the Treasury on account should be added £2,216 Os. 4d. for rates and contribu of reformatory schools for the year was $73,044 16s. 2d., tions in lieu of rates paid by the Treasury, and £5,920, being an increase upon the previous year of £293 (s. 60. the value of the printing, books, and stationery supplied The amount recovered from parents was $6,306 8s. 4d., by the Stationery Office, bringing up the gross total of being an increase of £609 38. the cost of local prisons to $430,985 10s. 28. This sum does not include pensions to prison officers, which are

CRIMINAL LUNATICS. payable partly by the prison authorities and partly by Criminal lunatics under detention in the several asythe Treasury. In 1877 the sum paid for pensions was lums, hospitals, and licensed houses, during the year, £22,442 6s. 5d. Allowing for this, the cost shows an numbered 851, of whom 528 were at Broadmoor State increase of £2,273 (s. 9d. on the cost of the previous year, Asylum, and 249 at county asylums. Under the Act of and a decrease of £70,363 48. 4d. from the cost of local 30 Vict. c. 12, pursuant to which criminal lunatics, whose prisons in 1876-7. The average charge per prisoner was term of punishment has expired, are not afterwards to be £21 14s. 6d. During the last twelve years the highest considered as criminals, but are to be treated as pauper average cost per prisoner was £27 8s. 4d., and the lowest lunatics, 99 lunatics ceased during the year to be considered £21 12g. 7d.

as criminals. Of these 851 criminal lunatics it appears The value of prisoners' labour in all local prisons was that 670 were under detention at the commencement of £151,931 ; in the previous year the value was £115,708. the year, 177 were committed during the year and 4

received from other asylums, 38 were discharged or CONVICT PRISONS.

removed, 4 escaped, 28 became sane, 4 were reThe returns relating to convict prisons, which are for moved sane for trial or punishment, and 4 were the year ending the 31st of March, 1880, show that at removed to other asylums. Deducting these and the commencement of the year 10,354 persons were the 99 who ceased to be criminals, there were 674 reundergoing sentence, and that 1,740 were received during maining at the end of the year. Ten years ago there were the year, making a total of 12,094. During the year 604. The total cost of criminal lunatics was $29,923, 7 were removed to county and borough prisons, 29 to which was contributed as follows:--£2,587 out of county lunatic asylums, 228 were discharged on termination of rates, £656 from borough funds, £9,376 from union or their sentence, 1,518 on licence, 9 on medical grounds, and parish rates, £16,015 from the public revenues, and 38 on receiving a free pardon; besides these there were £1,289 from private funds. The average cost per head 113 who died, and 5 who committed suicide. These of criminal lunatics at Broadmoor was £47 17s. 6d., as make a total of 1,947, and leave 10,378 remaining in against £53 13s. 70. in 1878. For the 47 county asyprison at the end of the year. Among the punishments lums the average cost per head for 1879 was £25 16s. 11d. awarded to convicts for prison offences, it appears that as against £26 58. 5d, in the preceding year.

one to suppose, a treatise on the Public Worship Act or REVIEWS.

ecclesiastical law, but an outline of the law of charitable

uses, and of the general law relating to the conveyance CRIMINAL LAW.

and enjoyment of public places for religious worship, A SKETCH OF THE CRIMINAL LAW. By W. SHIRLEY especially as applicable to Dissenting worship. This is SHIRLEY, Barrister-at-Law. Stevens & Sons.

prefaced by an historical sketch of the rise and progress Notwithstanding the publication of Mr. Justice

of religious liberty in England, which does not fall Stephen's “ Digest," there is still an opening for a

within our province. The summary of the Charitable portable, but compendious, Manual of Criminal Law for

Uses Act and the amending Acts and decisions is concise, the use of students. The present work, however, appears

but fairly accurate, and the Acts relating to the protecfrom the preface to be designed less for the use of law

tion of public worship and the registration of Dissenting students than for that of every intelligent citizen."

chapels are subsequently noticed. We would suggest The author appears to think that criminal law is a

that some information as to the decisions on the trust subject that should be learned very early in life, for he

deeds of Dissenting chapels, and some observations as to hopes “ that some of those excellent middle-class col.

the form of those deeds, would have been useful. Forms leges and grammar-schools which, moving with the

of trusts in Wesleyan, Congregational, Baptist, and times, have already done so much service by diverting

Calvinistic Methodist chapel deeds are given. Two of attention from dead languages, decayed philosophies,

these forms are, we observe, taken from the forms issued and other branches of useless learning, may take the

by chapel-building societies, and they will be useful for matter up, and introduce the criminal law into their

reference. Peto's Act and other Acts are printed in full curriculum." We fear that the work is too much of a

in the appendix. “ sketch" to be of great value to those students who have got beyond the stage of the grammar-school, although the definitions of the various crimes appear to be, for the most part, accurately stated, and the work is

CORRESPONDENCE. written in an easy and pleasant style. In some cases, however, Mr. Shirley's language is not very happily

To CORRESPONDENTS.-W. G. W. and R. S. Next week. chosen. Thus, at p. 35, he states that “involuntary translaughter is committed by a person who, while doing an unlawful act not amounting to a felony, or by his

CONDITIONS OF SALE. gross and wicked negligence, causes death." The sug. [To the Editor of the Solicitors' Journal.] gestion that negligent acts causing death cannot consti. Sir,-- A short time ago you published the last annual tute manslaughter unless they are "gross and wicked" | report of the Bristol Incorporated Law Society, and in is somewhat startling, but a few lines further on the some editorial remarks thereon drew attention to the definition seems to be modified, for we find it stated that, part of the report setting out certain resolutions of the "as to manslaughter by negligence, it has been said that council, which they had passed and forwarded to the whatever constitutes murder, when done intentionally, clerk to the sanitary authority, condemning the practice constitutes manslaughter when done by culpable negli- of the authority, on selling their surplus lands or salvages, gence." No doubt the limits of the work render it im- of stipulating that their title be accepted without quespracticable to introduce all the necessary qualifications to tion or investigation, and that the purchaser is not to the author's general definitions and propositions. The have any covenant for title or production of deeds; and fourth and most extensive part of the book, which is stating the reply of the committee of the authority,“that headed “Practice," is, perhaps, the most valuable part of no alteration be made in the conditions of sale." the volume, though, unlike the first three parts, it appears Last week there was a sale by public auction here of to err somewhat on the side of discursiveness, since it twenty-eight lots of surplus lands by the local sanitary comprises not only magisterial procedure and the forms authority under conditions of sale two of which are of indictment, but also the rules of criminal evidence appended at foot, and which conditions are, in the and questions as to the responsibility of children and opinion of the Law Council here, and the profession married women. We may observe that, in dealing with | generally, unusual and unfair, and such as to prohibit the case of a witness upon whose conscience the presiding trustees from investing in either the purchase of property judge is satisfied that the taking of an oath would have so sold, or the ground-rents created thereon, or to lend no binding effect, Mr. Shirley states that “such person trust moneys thereon. may give evidence on his promising to tell the truth." The same sort of question has lately arisen at Sheffield This statement of the practice would hardly lead the under sales by the corporation there of surplus lands, aris. student to suppose that the 32 & 33 Vict. c. 68, s. 4, | ing from their street improvements, but there the corporaprovides a special form of “promise and declaration " I tion behaved in a far more liberal manner, for not only for such cases, while we cannot find any reference did their conditions of sale provide that “the title shall to the provision in section 20 of the Common Law Pro commence with, and consist of, the deed of conveyance cedure Act, 1854, for the making of an affirmation by a thereof to the vendors, and the production of a Queen's person who has a conscientious objection to taking an Printer's copy of the Provisional Order and Act, together oath. We are somewhat puzzled with the statement in with the said deed of conveyance, shall be accepted as the preface that the author has referred as frequently conclusive evidence of the title of the vendors," but the as possible to the cases reported “in the two volumes of town clerk stated at the sale “that if any purchaser had Crown Cases Reserved, since those cases may well be doubts as to title, the corporation were perfectly willing considered the leading cases in criminal law.” If this to give absolute covenants for title against all the world.” refers to the volumes that are cited as L. R. 1 C. C. R. - Sheffield Daily Telegraph, Oct. 13, 1880.] and L. R. 2 O. C. R., it is difficult to understand why | The matter complained of appears to me to be of the years 1865-75 should be taken to represent a sufficient public and professional importance to justify specially important epoch in the development of English me in addressing you upon it.

JOHN MILLER. criminal law.

Bristol, Dec. 14.

[The following are the conditions referred to :PUBLIC WORSHIP.

* 5. The vendors are the mayor, aldermen, and burThe Laws RELATING TO RELIGIOUS LIBERTY AND PUBLIC gesses of the city of Bristol, being, by the council of the

WORSHIP. By Jour JENKINS, Esq., Registrar of said city [sic], the urban sanitary authority for the disCounty Courts. Hodder & Stoughton.

trict of the city and county of Bristol, and the property This is not, as the title might at the present time lead now offered for sale is part of the surplus portion of the

[ocr errors]

property acquired under statutory powers for the pur- holder of the bill was entitled to prove for the full amount pose of public improvements. The vendors stipulate! of it, but that he could not receive dividends beyond tbe that no purchaser shall call for any abstract or for the amount due to him by the drawer. It was conceded, bis production of their title, or of any deeds or writings,

lordship said, that, if the bill had been accepted for value, or shall investigate or make any objection or requisition

the holder would have been entitled to prove for the larger

amount, but it was urged that the fact of the acceptance in respect of such title, or the liability or tenancy (if

being for the accommodation of the drawer made a difference. any) subject to which the lot is sold, or, as regards

It was caid, and truly, that a man who had taken a bill lot 18, the reservation of minerals, but each purchaser

from the drawer as security only would hold for the drawer shall admit, as regards all the lots, that the vendors are

any sum recovered from the acceptor beyond the amount due seised of the property sold, subject as aforesaid, in fee on his security, and that when the bill had been accepted for simple in possession both at law and in equity free from the accommodation of the drawer, the drawer would be liable incumbrances, and as regards all the lots, that they have to repay to the acceptor any part of the sum recovered from power to sell the same subject to these conditions, and him which might be handed to the drawer by the holder. such purchaser shall require no recital in the conveyance But the acceptor bad put it in the power of the drawer to thereof, whether on fee-farm rent or absolutely, as to make the bill in the bands of a holder for value available such seisin or otherwise, or as to any other matter, and I against the acceptor for its full amount, and, although the no purchaser shall make any requisition in respect of

holder might have taken the bill as security for a sum less

than its amount, their lordships were of opinion that he was any statement contained in this condition, nor require

entitled to make the bill available against the acceptor in the any evidence in support of such statement.

way which would best produce the sum due to him, and that, “9. The vendors will convey each lot with its legal

in the event of bankruptcy, he was entitled to prove against and actual appurtenances only, without any general or

the acceptor's estate for the full amount of the bill. It had other words, and they shall not be required to enter into been argued that, is the acceptor had not become bankruptı. any covenant for title or production of deeds or writings, judgment in an action against him on the bill would have except only a limited covenant that they have not done been confined to the amount due on the security thereof from or knowingly suffered anything to incumber, nor shall the drawer. But, if the acceptor was solvent, a judgmens they be required to hand over to the purchaser any deeds

against him would realize the full amount for wbich it was. or writings whatsoever.”]

obtained, and, even if he was not solvent, the amount to be recovered on the judgment would, to an amount not exceeding the sum for which it was recovered, be limited only by the value of his estate which could be realized under

the judgment. In case this was insufficient to pay theCASES OF THE WEEK.

debt due to the holder of the bill, the amount which he

would recover would not be increased by giving him judgment PRACTICE_WRIT ISSUED BY NEXT FRIEND-SOLICITOR for a larger sum. Ex parte Bloxham, if it was not an au--INVALIDITY OF PROCEEDINGS.-In a case of Wood v. thority in favour of the bill-holder (as their lordships Swann, before the Master of the Rolls on the 3rd of thought it was), could not be regarded as an authority against December, a motion was made that the writ and all sub- | him. -SOLICITORS, Morley & Shirref'; Hughes, Hooker, & sequent proceedings in the action might be set aside, with

Co.; Williamson, Hill, & Co. costs against the person who bad issued the writ. It appeared that the writ had been issued by a gentleman purporting to be the next friend of a married woman and who COMPOSITION—CREDITOR OMITTED FROM DEBTOR'S STATEwas not a solicitor. JESSEL, M. R., said that he had consulted MENT OF AFFAIRS-APPLICATION AFTER REGISTRATION TO with the registrar, who, like himself, had never heard that ADMIT PROOF-BANKRUPTCY ACT, 1869, s. 126.-In a case anyone not a solicitor or a plaintiff in person could issue a of Ex parte Lacey, before the Court of Appeal on the 9th inst., writ. He therefore made the order asked for.-SOLICITOR, G. the question arose whether after the registration of composi. Thompson,

tion resolutions a creditor who was not named in the debtor's

statement of affairs, and who was, therefore, as is exPROOP IN BANKRUPTCY — ACCOMMODATION BILL OF

pressly provided by section 126, not bound by the composj. EXCHANGE-DEPOSIT AS SECURITY.-In a case of Ex parte

tion, and who had not taken any part in the meetings of Newton, before the Court of Appeal, on the 9th inst., an

the creditors, could obtain from the court an order to important question arose as to the right of proof in bank.

admit a proof of his debt, and that the debtor should pay ruptcy in respect of an accommodation bill of exchange

him the amount of the composition in respect of it. No viz., whether, when a bill has been accepted for the accom

trustee had been appointed for the receipt and distribu. modation of the drawer, and it has been deposited by the

tion of the composition, and no security had been given drawer as security for a sum less than the amount of the

for its payment. Bacon, C.J., had made such an order bill, the holder is entitled to prove in the bankruptcy of the

on the application of an omitted creditor. And in snpacceptor for the full amount of the bill, or only for the

port of the order it was urged that, as was decided by the amount of the debt to secure which it was deposited with

Lords Justices in Ex parte Carew (23 W. R. 459, L. R. 10 him. Strange to say, there seems to have been scarcely any

Ch. 308), the provision of section 126, that creditors anthority upon the point before the present decision. In who are omitted from the debtor's statement are not Cooke's Bankrupt Law (8th ed.), p. 176, it is laid down bound by the composition, was inserted for the benefit that in such a case the holder can prove for the full amount of such creditors, and can be waived by them if they of the bill, but that he cannot receive dividends in excess of elect to take the benefit of the composition, which may the debt due to him by the drawer, the authority given for in some cases be more advantageous to them than their the statement being the case of Ex parte Bloxham (6 Ves. original right to sue the debtor ; and it was suggested 449, 600). It was in the first instance decided by Lord that a debtor might omit from his statement the names Rosslyn in Ex parte Bloxham (6 Ves. 448), that the proof of creditors whom he did not wish to pay, and hand over must be limited to the amount of the debt, but the right of all his assets to a trustee for the payment of those creditors proof was afterwards extended by Lord Eldon in the later who were mentioned in his statement, and so, when the case of Ex parte Bloxham (6 Ves, 600). There is, however, a omitted creditors exercised their right of going him, dictum of Mellish, L.J., rather to the contrary effect in In there might be nothing left to pay them. The court re Gomersall (24 W. R. 257, L. R. 1 Ch. D. 142). In the (JAMES, COTTON, and LUSH, L.JJ.), however, held that, present case Bacon, C.J., held that the right of proof was on the registration of the resolutions, the composition prolimited to the amount of the debt secured by the deposit, ceedings came to an end, and that after that the court had The appeal was argued in June last before Baggallay, Cotton, no power to interfere, except in the mode pointed out by and Thesiger, L.JJ., when the judgment of the court was section 126—that is, by enforcing the provisions of the comreserved, and on the 9th inst., COTTON, L.J., delivered the position upon the motion of any person interested. The judgment of himself and BAGGALLAY, L.J. (which, after the section provided for the correction of any mistake made death of Thesiger, L.J., the parties had agreed to accept), inadvertently by a debtor in the statement of bis debts, with stating that he believed Tbesiger, L.J., would bave concurred the consent of a general meeting of his creditors, and, if there in the decision. Their lordships were of opinion that the was a fraudulent omission, a sufficient remedy was given to, the omitted creditor by the power given to the court by the judgment, and the sheriff thereupon withdrew from possession. last clause of section 126 to adjudge the debtor a bankrupt, if | A winding-ap order was made, and the jndgment it should appear that the composition could not proceed with- creditor applied in the winding up for leave to proceed out injastice or undue delay to the creditors. The court had with his execution. Malins, V.C., was of opinion that no jurisdiction after the registration of the resolutions to section 10 of the Judicature Act, 1875, did not enforce a merely personal demand of a creditor against the operate to render section 87 of the Bankruptcy Act, 1869, debtor, there being no assets to administer. The observations applicable to the winding up of a company, and he ordered of Mellish, L.J., in Ex parte Carew must be read with the liquidator to pay the amount due in respect of the reference to the facts of the particular case, which were very judgment out of the first assets which should come to his different from those of the present case. There the debtor hands. This decision was affirmed by the Court of Appeal had mentioned in his statement of affairs a disputed claim (JAMES, COTTON, and Lush, L.JJ.). JAMES, L.J., was of against him for an alleged breach of trust, which was the opinion that the only object of section 10 was to introduce subject of a pending chancery suit, and a fand had been into the administration of the assets of a deceased person and placed in the hands of a trustee sufficient to pay the the liquidation of a company the same rule, as between composition to all the creditors, including the estimated secured and unsecured creditors, as that which had preamount of the claim in the chancery suit. And all that the vailed in the administration in bankruptcy, and the fallacy court did was to refuse an application by the debtor, made of the view of the Master of the Rolls was in supposing that, after the composition had been paid, to all the creditors but because in bankruptoy a security was avoided under certain the claimant in the chancery suit (which suit was still circumstances, the same result was intended to follow in the pending), that the trustee should hand over to the debtor the administration of assets and in a windiog up. Section 10 balance remaining in his bands. And the observations of contained no words avoiding any security. Section 87 dealt Lord Hatherley and Lord Blackburn in Breslauer v. Brown with the question what constituted the fund to be ad-(26 W. R. 536, L. R. 3 App. Cas. 672) were to be explained ministered, not with the administration of the fund, and its in the same way, that is, as recognizing the right of an provisions could no more be imported by means of section omitted creditor to apply to the Court of Bankruptcy for 10 into a winding up than could the bankruptcy law as to payment of the composition only during the pendency of the fraudulent preference, or order and disposition. When the composition proceedings, whicb, in an ordinary case, Act was passed there were different rules of administration in meant before the registration of the resolutions. Leave chancery and bankruptcy with regard to secured creditors, to appeal to the House of Lords was refused.-SOLICITORS, and the object of section 10 was to alter that, and make the John Evans f Peacock ; G. Rose Innes, f Son.

rule the same in both jurisdictions. COTTON, L.J., said that the liquidator was seeking by his appeal, not to administer

the assets of the company, but to bring into the assets that DEBTOR'S SUMMONS-JURISDICTION OF COURT-Resid whicb, independently of section 87 of the Bankruptcy Act, ENCE-CARRYING ON BUSINESS — BANKRUPTCY RULES, or some other statutory enactment, would not be assets of 1870, B. 17.-In a case of Ex parte Breull, before the

the company at all. If the Master of the Rolls' view of Court of Appeal on the 9th inst., a question arose with section 10 was right, it would follow that the discretion regard to the jurisdiction of the Court of Bankraptcy to

given to the court by section 87 of the Companies Act, 1862, issue a debtor's summons. Rule 17 of the Bankruptcy to allow a judgment creditor of a company to proceed to onRules of 1870 provides that “a debtor's summons may be force his judgment, after the making of a winding-up granted by the London Bankruptcy Court, if the debtor order, had been taken away altogether. And section 87 resides or carries on business within the district of that

of the Bankruptcy Act did not purport to interfere with court." A debtor's summons was issued out of the London the rights of secured and unsecured creditors inter se, oxcourt against a person who was a clerk in a bank in the

cept in so far as its effect was to bring into the assets city of London, but who lived in one of the suburbs outside of the company something which would not otherwise

the London court. The debt claimed had belong to them. In his lordship's opinion, on the fair been contracted in the city. The debtor was described in construction of section 10, its effect was to alter the the summons only by the address of the office of the bank, rule of administration, not to alter the property which and the summons was served upon him there. Mr. Registrar was to be administered. LUSH, L.J., said that secMurray dismissed the summons as irregular, on the groundtion 87 of the Bankruptcy Act was part of the Bankruptcy that the debtor did not reside within the district of the Code, and applied to a bankrupt trader ; it had nothing to London court. The Court of Appeal (JAMES, COTTON, and do with a company in liquidation. A winding-up order of LUSH, L.JJ.) held that the summons had been properly | itself put a stop to all proceedings against the company, issued, on the ground that the debtor carried on business in though the Companies Act gave the court a discretionary power the city of London. The object and intent of the rule, they to allow the proceedings to go on. And the object of secsaid, was that the proceedings on the summops should take

| tion 10 of the Judicature Act was to govern the administra. place in what might be called the debtor's natural forum, and tion of assets. Its whole object was that, when a secured & man might properly be said to carry on business at the creditor made a claim against the assets of a company in place where he was occupied in an employment which was

liquidation, he should be in the same position as a secured the business of his life. It was not necessary that he should creditor who was making a claim against the assets of a be carrying on business as a principal. JAMES, L.J., was bankrupt. In the present case, the creditor was making no also of opinion that the London court had jurisdiction, on claim to share in the assets of the company; he was only the ground that the debtor might be fairly said to reside claiming the benefit of his security, and the court could where he was to be found daily.-SOLICITORS, W. W.

give him leave to realize it.-SOLICITORS, Weed & White ; Wynne & Son; F. Clift.

Collyer-Bristow & Co.


LUSH, Lollit the Bankruptcy

COMPANY – WINDING UP-SECURED CREDITOR-EXECU. TION LEVIED AFTER PRESENTATION OF WINDING-UP PETITION JUDICATURE ACT, 1875, S. 10-BANKRUPTOY ACT, 1869, s. 87.--The important question of the construction of section 10 of the Judicature Act, 1875, upon which we commented last week (ante, p. 111), came at length to be decided by the Court of Appeal, on the 13th inst., in a case of In re The Withornsea Brick Works, the result being the affirmance of the view which we ventured to suggest of the proper construction of the section, and the overruling of the decision of Jessel, M.R., in In re Printing and Numerical Registering Company (26 W. R. 627, L. R. 8 Ch. D. 535). The facts were shortly these :-A judgment creditor for a sum exceeding £50 issued execution against the company, and the sheriff seized their goods. Before a sale had been effected, the company presented a winding-up petition. An order was then made in the action, restraining the ereditor until further order from proceeding to enforce bis

Costs — TAXATION PRODUCTION OF DOCUMENTS — REFRESHERS TO COUNSEL-DISCRETION OF TAXING MASTER. In a case of Brown v. Sewell, before the Court of Appeal on the 15th inst., some important questions arose as to the taxation of costs. The first question was whether when a judge's order is made in an action in the Chancery Division for the production of documents at the office of the producing party's solicitor, that party, if ultimately successful in the action, is entitled, as between party and party, to his solicitor's costs of the production, and whether under the same circumstances the successful party is entitled to his own costs of inspecting the documents of his adversary. In the present case the taxing master had given the defendant (the successful party) costs of production under both the above heads, and Bacon, V.C., had declined to interfere with his decision. The Court of Appeal (JESSEL, M.R., and Cotton and Lush, L.JJ.) held that the taxing master was wrong on both points. JESSEL, M.R., said that under the old practice in

the Court of Chancery the strict rule was that the inspecting between the fees of the leader and the janior, and there was party was entitled to have the documents of which produc- no ground for interfering with the taxing master's decision. tion was ordered deposited at the Record and Writ Clerks' -SOLICITORS, Bolton f Co.; Lear oyd & Co. Office, and it was a matter of indulgence and convenienoe to the producing party to allow the documents to be produced at the office of his own solicitor. There would bave been no COMPANY_NOTICE TO LIQUIDATORS NOT TO PAY DIVI. costs of production at the Record and Writ Clerks' Office, DENDS TO DIRECTOR8-SET-OFF-RIGHT OF ACTION-JURIS. and it was well settled in the Court of Chancery that the DICTION OF COURT TO ADVISE LIQUIDATORS-SERVICE OF producing party could not make his opponent pay more

NOTICE OF MOTION-COMPANIES Act, 1862, s. 138-COSTScosts for his own convenience. There was no reason for RULES OF COURT, 1875—ORD. 55, R. 1:- In a case of Re altering this role now. But in congequence of the transfer Standard Discount Corporation (Limited), before the Master of the Record and Writ Clerks' Office to the Central Office of the Rolls on the 10th inst., a motion was made that it of the Royal Courts, some new rule might be reqaired might be determined by the court whether the liquidators of in order to make the practice uniform in all the divisions. the company were justified, notwithstanding the threats and Before that transfer there was no office of the

opposition of one Argles, a member of the company, in paying common law masters at which documents could be

the late directors of the company their proportion of the deposited for production. After the power to order surplus assets now in course of distribution, or whether such production was given to the common law courts,

surplus assets should be beld over, pending proceedings by the it could only be exercised by ordering production at the

said Argles. The motion was made under section 138 of the office of the producing party's solicitor. It might well be

Companies Act, in consequence of certain letters of Mr. said then that, the production at the solicitor's office being

Argles, requiring the liquidators not to pay the late directors a matter of right, not of favour, the costs of production

of the company any portion of the assets until he had had an ought to be allowed. And it appeared by a note from

opportunity of bringing certain claims against them in the Master Dodgson that such had been the practice in the

winding up, which would, as he alleged, result in large sums common law divisions. Under the Judicature Act there

being found due from them. The liquidators had declined to was power to order production in the country, and it was

take any proceedings. Mr. Argles required to inspect the deserving of consideration whether for the future produc

books by an accountant, whish had been refused. Objections tion should not be at the distriot registry or at the Central

on his part were now taken to the motion on the grounds that Office. His lordship did not, however, decide this point

the court had no jurisdiction to interfere, and that the motion

should have been made ex parte, so as not to cause Mr. Arglas now. As to the inspecting party's costs of inspeotion, the

to pay the costs, and also on the merits. practice in chancery was quite settled that he could not

JESSEL, M. R., said

that the question raised by the motion was as to the payment get them from his adversary. COTTON, L.J., said

of a dividend out of the assets, and he was clearly of opinion there was nothing in the Judicatore Act or Rales

that it was properly within the 138th section, and that he had to alter this, and there was no reason for altering it. LUSH,

jurisdiction to determine the question. As to whether the L.J., said it was most desirable that there should be uni

motion ought to have been served on anyone, he was of formity of practice in all the divisions.

opinion that in all cases the court must decide the question Another point was as to the allowance of refreshers to

of parties, and, indeed, the liquidators might have first come counsel. The trial of the action commenced about

to the court and asked who ought to be served on the motion, twelve o'clock on one day, and it was concluded

In his opinion it wys proper in the present case to have about eleven o'clock on the following day. The taxing

served Mr. Argles, as he would not be bound by the decision master allowed refreshers, and Bacon, V.O., declined to

in his absence. The liquidators would most naturally wish alter his decision. The Court of Appeal held that re

to bind him, as he said that if they paid this dividend he freshers ought not to be allowed. JESSEL, M.R., said

should hold them personally responsible. The case was within that he understood the practice of common law with

the principle of those cases where persons made a claim to regard to refreshers, as he had stated in Harrison v. Wear

trust funds in the hands of trustees, and the trustees brought ing (27 W. R. 526, L. R. 11 Ch. D. 206), to have been

an action to determine the rights, making the different settled many years ago by the Court of Queen's Bench, and

claimants parties. He could see no difference between the the Court of Common Pleas adhered to it in the year

case of liquidators and any other trustees, except that this 1874-viz., that, when a case occupied more than one day

question was raised by motion instead of by action. In the which meant more than the time of one day, for it

present case one of the shareholders said the liquidators had might occupy parts of two days making less than a

no right to pay certain dividends, and the liquidators were whole day—then the taxing master had a discretion to allow

entitled to come to the court and ask if they were justified in refreshers. But, when the case occupied less than the

paying them. On the question of jurisdiction as to giving time of one day, the taxing master could not allow

the liquidators the costs, he was clearly of opinion he had a refreshers-he had no discretion. In the present case,

discretionary power of dealing with them under rule 1 of order the taxing master had acted under a mistake of fact in

55 of the Rules of 1875. On the merits, what Mr. Argles allowing the refreshers. COTTON, L.J., said that the

alleged was that the directors had speculated with the funds of practice of allowing refreshers had been adopted from the

the company, and were liable to pay large sums to the comcommon law divisions into the Chancery Division, and the

pany. Mr. Argles thought he could prove this if allowed rule of the common law divisions ought to be followed.

| inspection of the books. On the other hand, the liquidators A third point arose thus :--The Queen's Counsel who

said the only transaction of the sort could not be impeached, appeared for the defendant on the trial died before the case

and that they did not intend to take any proceedings. Then was heard on appeal, and on the appeal another Queen's

Mr. Argles wanted to have the books seen by an accountant, Counsel was retained. Under these circumstances a larger

which had been declined. All that was beside the present fee was paid to the Queen's Counsel on the appeal than had

question, which was as to the payment of a dividend, and if been paid to his predecessor on the trial, and the fee paid to

any discovery was refused there was another way in which, if the junior was proportionately increased. The taxing

necessary, it could be obtained. In his opinion, however, the master allowed these increased fees. Bacon, V.C., affirmed

fact of the claim was no reason for stopping the payment of his decision, and the Court of Appeal refused to disturb it.

| the dividend, as even if there was a claim against the JESSEL, M.R., said that no doubt in the Chancery Division

directors, there would be no right of set-off, and therefore he the fees of counsel on an appeal were generally the same as

saw no reason for staying the payment of these sums to them. on the original hearing. But the rule was a most valuable

| He thought on the facts that Mr. Argles had acted most unone that the court would not interfere with the decision of

reasonably, and therefore he should order him to pay the costs the taxing master in a question of amount, unless there had

of the motion, and should declare the liquidators entitled to been a gross miscarriage. If this was not so, a large part of

pay the dividends.-SOLICITORS, L. S. B. Rawlins ; Argles, the time of the judges of the High Court and of the Court of

Rand-Bailey, & Argles. Appeal would be occupied with questions of taxation. And, moreover, the taxing masters in the Chancery Division were, as a rule, solicitors of experience, and better qualified to COMPANY_WINDING UP-HOLDER OF Fire POLICY-FIRB decide on the amount of fees than the judges themselves. AFTER WINDING UP-Proof-COMPANIES Act 1862, s. 158It might be said that the circumstances afforded no reason RULE 25, ORDERS, NOVEMBER, 1862-JUDICATURE ACT, 1875, for increasing the fee of the junior on the appeal. But, by a 8.10—BANKRUPTCY Act, 1869, s. 31-Rule 67, BANKRUPTCY long-settled practice, there was & well-known relation RULES, 1870-FORM 32 OF BANKRUPTCY FORMS, 1870.-In

« PreviousContinue »