Page images

they cite this case in a subsequent page. This will probably be held to be the law by the ultimate Court of Appeal, for it is a clear result of the principles laid down in Attorney-General v. Brunning (8 W. E. 362, 8 H. L. C. 213). The judgment in that case ought, by the way, to have been referred to by the authors, when they say, under the head of "Book Debts," that "in Moses 1. Cra/ter (4 C. & P. 324) Lord Tenterden, C.J., ruled that desperate and doubtful debts could not be included in calculating the amount of probate duty, and that an executor had a right to exercise his judgment fairly and bona fide, whether a debt is doubtful or bad." In Attorney-General v. Brunning it was intimated that mere uncertainty as to the amount to be recovered is no excuse for omitting such amount from the affidavit. Under the head" Goodwill, stock-in-trade, farming stock, and implements of husbandry," the authors point out that the value at the date of grant of growing crops on land farmed by the deceased, and moneys received from the sale thereof before the date of grant, must not be omitted. It will be seen that the mode of treatment of the subject adopted by the authors is eminently practical, and the same remark may be made as to the whole book. Chapter 4 contains forms and regulations, and in an appendix the statutes and bibles are given in full



firms To Self-preparation In Stephen's CommenTaries. Second Edition. By Albert Giuson, Solicitor. Reeves & Turner.

The author splits up Stephen into sections, apportioning a week or a fortnight to each. We thus learn that -it takes twenty fortnights to go through the Commentaries, provided the student can only give three hours a day; if he can devote six hours a day the book may be devoured in twenty weeks. Besides this, the student who has swallowed his allowance for eight weeks (or four weeks, as the case may be) is advised, like the boa constrictor, to devote a little time to digesting his meal. It takes two weeks to " revise" vol. 1 of Stephen, or one week if six hours a day can be given to the process. Mr. Gibson gives a summary of the contents of the four volumes, and papers of questions.

Digest Op The Questions Set In The Bar And Solicitors' Final Examinations For The Last Ten Years, &c, With Answers To The Questions. By Joseph A. Shxarwood, Barrister-at-Law. Reeves & Turner.

Mr. Shearwood gives the questions asked at the bar and final examinations during the last ten years, arranging the questions alphabetically, and stating also the cumber of times each question has beeu asked; and he adds, in a separate [part of the book, answers to the •questions.

ROHAN LAW. IsTBODUCTiON To Roman Law. By W. A. Hunter, Barrister-at-Law, Professor of Jurisprudence, University College, London. W. Maxwell & Sons.

We have delayed too long our notice of this excellent little book. It provides exactly what the student is often in need of—a companion to the Institutes of Justinian, comparing the English law with the Roman law, and supplementing the defects of the Institutes. The book is pleasantly written, and gives clearly and in a small compass information which it would otherwise take the student much labour to obtain. The author has, we think, been specially successful in dealing with the subject of testamentary succession.

RAILWAY LAW IN ITALY. The Law Of Italy Relating To Concessions, Railways, And Tramways, Expropriation And Companies. Translated into English aud annotated by 0. W. Wallis, Barrister-at-Law. Stevens & Sons.

It appears that the Italian. Government are holding out inducements to capitalists, in the shape of subsidies and concessions, with the view of encouraging the construction of public works likely to develop the resources of the kingdom. For the benefit of Euglish capitalists Mr. Wallis gives a translation of the provisions of the Italian law relating to railways and tramways and expropriation, and of the Italian Code of Commerce relating to partnerships and companies and associations. We cannot pretend to judge as to the accuracy of the translation, but references are given to the articles of the original code, and the translation is clearly expressed.


[To the Editor of the Solicitors' Journal.]

Sir,—Ic is quite evident from the correspondence which has appeared in your columns that there will be a large attendance at the society's next provincial meeting at Brighton, and it is unreasonable to expect the members of the Brighton Society, however willing they may be to incur the liability, to entertain at their own ■expense all those who may be expected to be present.

I do not quite gather in what way Mr. Munton proposes to give effect to the suggestion contained iu his letter, but I think the mattor is of so much interest to the profession generally that it is one which the council of the Incorporated Law Society might of their own accord be invited to take up and consider. Mr. Howlett is an official member of the council, and there can be no difficulty in some member unofficially introducing the subject to him, and ascertaining the form in which it will be most acceptable to the Brighton Society for the matter to be brought under the notice of the council.

Your own suggestion that the Sussex Society might consent to admit, as honorary members, those solicitors practising in London who would wish to acknowledge the hospitality received by them from the provinces, is, no doubt, well worthy of consideration. In the first instance, however, I submit that the views of the council should .be ascertained, and then, subject to what the council may propose to do, Mr. Muuton would probably not be unwilling, since he has affixed his signature to hia letter, to promote a meeting of the members of the society to consider the matter. No doubt, the council would gladly place one of the rooms belonging to the institution at his disposal for the purpose of holding a meeting.

I do not think the suggestion made by your correspondent " G. R. D.," whose initials are easily recognized, that each member attending the Brighton meeting should pay for his ticket of admission to the banquet, would altogether meet the exigencies of the case. This suggestion was adopted, I believe, when the society held its provincial meeting at Oxford, but then tho circumstances of the meeting at Oxford are very different to what those of the Brighton meeting will be.

I am rather disposed to favour the view that the council should take a bold step, aud give effect to the suggestion of " Another Town Member," and make the meeting next year at Brighton to a very great extent a meeting promoted by the town members, in co-operation with the Sussex Society.

I agree with him that it is unwise to attach too much importance to what I may term the hospitality and excursion character of these meetings. The primary object ip, and ever must be, to meet, discuss, and exchange views on matters of interest to the profession; but, at the same time, after listening two days, in the somewhat warm atmosphere of a crowded room, to a variety of different matters, the entertainments which follow after the meetings are certainly a pleasant and agreeable change, and should not, therefore, be omitted.

Probably most of the members of the council have seen the correspondence on this subject in your columns, and one of them will, I hope, see fit to take an early opportunity of ascertaining the views of his colleagues thereon. Until this step has been taken, it seems unnecessary for Mr. Munton, or anyone else, formally to move in the matter. It may be, however, that the council would like some representation made to them, and if this should be the case, Mr. Munton could take an early opportunity of inviting to a meeting at the Law Institution those of the town members who have attended recent provincial meetings, and thus ascertain how far any of the suggestions which have been made will be likely to meet with the approval, if not of all the members of this society, at least of those who have been guests at the previous provincial meetings.

I wish at once to enter my protest against" G. R. D.'s" suggestion that the town members should invite the provincial members to a meeting in London, assuming that the meeting could be properly held in London, in the month of July. At that period of the year professional and social engagements multiply too rapidly already, and I think it would be impossible for town members to give anything like the time necessary to entertain their provincial brethren in July.

It has often occurred to me that it would be a great advantago if the society's annual meeting could be held at some other period of the year than July; and that, if it must be held in July, four or five o'clock in the afternoon would be a much more convenient time than two o'clock. Host London solicitors in July are pressed with business, and can ill spare the time to attend a public meeting in the middle of the day, unless their attendance is professionally required. This is how it has so often happened that the annual meetings of the society huve either practically passed off as a matter of form, or been taken in hand by one or two speakers only (generally the same every year) who hardly seem to care to deal seriously with the council's annual report, but rather appear to endeavour, by the exercise of some ingenuity, to amuse those present by describing nearly every conclusion to which the council may have come as being "lame and impotent." This may be witty and amusing at the time, but it is by no means satisfactory or worthy of the society.

In the multitude of counsellors it has been well said there is wisdom, and there is no doubt that out of the variety of suggestions which have been made to the council they will, if they give their attention to the matter, be able to evolve a plan more or less satisfactory to all parties. A London' Solicitor.

A DISCLAIMER. [To the Editor of the Solicitors' Journal.'] Sir,—With reference to the report of certain proceedings in the Common Pleas DiviMon lu'nded, as reported in the Times of yesterdny's date, "In -the Matter of Kisch, a Solicitor," we desire to draw your attention to the fact that the gentleman therein referred to is not a member of, neither has he any business in connection with, our firm.

Kisch, Son, & Iianuury. ?, Chancery-lane, W.C., Nov. 11.

BELLS AT BURIALS. [To the Editor of the Solicitors' Journal.] Sir,—I have been recently informed that you have, in one of your late numbers, attributed to me a letter

written in the Times last month on the subject of Bells at the burials of Nonconformists under the recent Act. If this be so, I should be obliged to you to state in your next number that the letter was not written by me, and< does not express my views.

The letter in question was signed W. P. W. Phillimore.

These, though not my initials, are perhaps sufficiently alike to account for the mistake which many people havemade, and which has caused me much annoyance.

Walter (J. F. Phillimore.

4, Paper-buildings, Temple, Nov. II.

[Dr. Phillimore has been misinformed. We ascribed the letter to " a learned correspondent of the Times," but did not in any way refer to Dr. Phillimore.—Er>. S. J.]


PartnersSharing Of LossesInsurance CompantPartjcipatino Policy Holders.—In a case of In re Tlie Albion, Life Assurance Society, before the Court of Appeal on the 3rd inst, the question arose whether the participating polioy holders of an insurance company were liable to contribute to tbe payment of the debts of tbe company and the costs of the winding-up rateably with the shareholders, or whether the liability must be thrown primarily on the shareholders, recourse being had to the polioy holders only after the shareholders had been exhausted. It was admitted, and, indeed, it had been so decided by Fry, J., in Winsioiic's case (27 W. R. 752, L. R. 12 Ch. D. 289), that, by virtue of tbe articles of association of the company, which provided that the holders of policies entitled to participate in profits should be members of the company, they were liable as contributories to the outside creditors of the company. The question was how the liability was to be borne as between themselves and the shareholders. The whole of the subscribed capital had been called up, some before the commencement of the winding up, and the remainder afterwards. The liability of the shareholders was unlimited, but the policies issued by the company ooDtained a proviso that they were to be satisfied only out of the funds and property of the company. The articles of association provided that interest at the rate of six per cent, per annum should be paid to the shareholders out of the profits on the amount for the time being paid up on their respective shares. The capital was to be a guarantee fund, over and above the accumulations from profits, but it was subject to bo paid off, with the sanction of a general meeting, the shareholders receiving back tbe amount of their paid-np capital, with a bonus of fifty per cent., whenever the net amount of the profits standing to the credit of tbe assurance fund should be equal to double the amount of the bonuses which would be thus payable to the shareholders. After this payment off of the capital, the company was to become a mutual association, the only fund for the payment of the liabilities of the eompany being the assurance fund. This power to pay off the capital had not been acted on before tbe commencement of the winding up. In every third year there was to be a valuation made of the assets and liabilities of the company,, and of the profits of the assurance fund, and the directorswere to declare the amount which might be dealt with as the profits of that fund. The amount of profits thus declared was to be apportioned in this way: one-fourth among the shareholders (if any) and the other three-fourth!, or the whole, if the capital should have been paid off, by way of bonus among the holders of subsisting policies entitled to participate in profits on whioh at least five years' premiums should have been paid in full, regard being had to the dates of the policies, tbe ages of the lives assured, and other circumstances. The bonus apportioned to any policy was to be added to the amount thereof, and to be payable therewith in reversion, and wa«, in the meantime, to be retained and applied as any other capital of the company, bnt power was given to the directors to pay any policy holder, who should give notice within a prescribed time, the then present value of his bonus. It was contended on behalf of the shareholders that the holders of participating policies were liable with them to contribute to the payment of tbe debts of the company and the costs of the liquidation, in the proportion of three-fourths to one-fourth, that being the proportion in which the profits were divisible between the policy holders^ and the shareholders. Malins, V.C., held (L. R. 15 CK. D. 79) that the policy holders conld not be called on to contribute until the shareholders had been exhausted, and this decision was affirmed by the Court of Appeal (jessel, M.R-, and James and Cotton, L.JJ). Jessel, M.R., admitted that in the ease of an ordinary mercantile deed of partnership, if there was so express provision as to the bearing of losses by the partners, the fair inference would be that the losses were to be borne in the same proportion as the profits. But, he said, the question was really one of inference from the provisions of the deed. In the present case the profits were not really to be divided in any definite proportion*. The bonus to be given to the policy holders was reversionary—i.e., was payable only out of the funds of the company, if there should be fnnds when the policy should become payable, and it varied with the circumstances of each policy. It was, in trntb, not a payment out of profits, but a return of the excess of the premiums paid above the amount actually necessary to secure the sum assured. Looking at all the provisions of the articles, no inference could be drawn as to the division of the losses from the provision as to the division of profits. And, that being so, the only reasonable way of dividing the losses was to treat the shareholders at having carried on the business. The only other way would be divide the losses per capita between shareholders and policy holders, and this would be most absurd and unjust. It was not reasonable to suppose that, if the capital should be insufficient, the policy holders were not only to lose their policies, but also to contribute to the payment of the companj's debts.—Solicitous, V. J. Chamberlain; Miller, Smith, iBell; G. Blagden.


In a ease of The Republic of Costa Rica v. Strousberg, before the Court of Appeal on the 4th inst., a question arose aa to the extent of the power of examining a judgment debtor 41 aa to whether any and what debts are owing to him," which is conferred by rule 1 of order 45. The plaintiffs had recovered judgment against the defendant for a large sum of money, and they then obtained an order under rnle 1 that he should attend for examination. He attended accordingly, but declined to answer many of the questions which were put to him, insisting that he was only bound to say whether any debts were owing to him and what they were. He said that the plaintiffs owed him an amount exceeding their claim against him, and he refused to give any further information. The questions put to him were of this nature—whether he had a banking account with any banker other than some specified bankers; whether he was carrying on any business; whether he bad any pending contracts ; whether any money was due to him under any pending contracts; whether any rent was due to him. AH these questions he refused to answer, and Malins, V.C., held that he was entitled to do so. The Court of Appeal (jessel, M.R., and James and Cotton, L.JJ.) held that the defendant was bound to answer the questions, and any other similar i.uestions which were fairly pertinent to the discovery of debts due to him. Jessel, M.B., thought that the rnle had the same meaning as tbe orders whioh had constantly been made nnder seotion 60 of the Common Law Procedure Act, 1854—viz., that the debtor should be examined satiating Ot concerning any debts owing to him. James, L.J., said that the examination was intended to be a crossexamination of the severest kind.—Solicitous, Freshfields t Williams; Lee, Houseman cfc Brodie.

Agbrment TO TAKE EVIDENCE BY AFFIDAVIT—REFUSAL or Witness To Make AffidavtiOrd. 37, R. 4.— In t case of Warner v. Mosses, before the Court of Appeal Go tbe 4th inst., the question arose what is the proper course of procedure when, after an agreement has been como to between the parties to an action that the evidence shall be taken by affidavit, some of the persons whose evidence is intended to be relied upon by one of the parties, refuse to make affidavits. In the present case, under such a state of circumstances, Bacon, V.C., on tbe application of the pUuntifi, made an order that he should be at liberty to examine witnesses ex parte touching the matters in question in tbe action, and appointed a special examiner for the purpose. An<l it was further ordered that tbe plaintiff should be at liberty to give all or any of the depositions thus

taken in evidence on the trial, on their being filed before a day named, the plaintiff undertaking to produce the witnesses for cross-examination at the trial. This order was made upon an affidavit of the plaintiff's solicitor that, since the agreement to take the evidence by affidavit had been come to, he had ascertained that there were several witnesses whoso evidence was necessary and material to support the plaintiff's case, who declined to mako affidavits. The names of the persons thus refusing were not, however, stated. The Courtof Appeal (jessel, M.R., and James and Cotton, L.JJ.) discharged the Vice-Chancellor's order. Jessel, M^R., thought that in the particular case there was no jurisdiction to make the order, and that if there had been jurisdiction, the order could not have been maintained. After an agreement of the parties that the evidence should be taken by affidavit, tbe evidence could be taken in no other way at the trial. If, however, it should afterwards appear that one of the parties had entered into the agreement in the mistaken belief that the persons whose evidence he required would make affidavits, he could be relieved from tbe consequences of his mistake by means of an application to the court. In cases of thu, kind before his lordship the practice had been for the solicitor of the party to make an affidavit that he believed when he entered into the agreement that his witnesses would make affidavits, but that he had since ascertained that some of the witnesses, whoBe mines he stated, refused to do so. And then he asked that the witnesses in question might be examined orally at the trial, or, at the option of the other party, that all the evidence might be taken orally; and his lordship had made orders of that nature. But no such application was made in the present case. Rule 4 of order 37 was expressed in general terms, but it was almost copied from section 4 of the Act 1 Will, i, c. 22. The words were, "The court may, in any cause or matter where it shall appear necessary for tbe purposes of justice, make any order for the examination upon oath before any officer of the court, or any other person or persons, and at any place, of any witness or person." It conld not be necessary for the purposes of justice that a witness who could attend at the trial should be examiuod before the trial, and accordingly section 4 had always been applied to cases where a witness was going abroad before the trial, or where, from illness, or old age, or other similar reason, it was probable that he would be unable to attend at the trial. In such cases an order would be made for the witness to attend and be examined dc bene esse, both parties attending the examination, but the order would only be made upon evidence of the facts. His lardship did not wish to confine rule 4 to tbe cases he had mentioned. But the case must be one in which it was necessary for tho purposes of justice that the order shonld be made. It could not be necessary for those purposes that there should be an ei parte examination. Therefore, even if there was jurisdiction to make the order, it was not a proper one to have made. Moreover, the order ought to have stated the names of the witnesses who were to be examined. As it stood, it would enable the plaintiff to summon all tbe defendant's witnesses and examine them ex parte before the trial, which would be very unjust.— Solicitors, Jauson, Cobb, 4; Pearson; J, W. St/kcu

DiscoveryInterrogatories—Order 31.—On the 4th inst., the Court of Appeal (jessel, M.R., and James and Cotton, L.JJ.) affirmed the decision of Bacon, V.C., in a case of Benbow v. Low (28 W. R. 891). Tbe question was whether the plaintiffs were bound to answer an interrogatory which had been delivered to them by the defendants. The plaintiffs and the defendants were rival soap manufacturers. Tho plaintiff* alleged that they had for many years used labels bearing a trade-mark very similar to that of the defendants. The defendants denied this, and said that the plaintiffs had only recently commenced to use such labels. The defendants had obtained an injunction iu America restraining the plaintiffs from using these labels, and the plaintiffs brought this action claiming a declaration that they were entitled to use the labels in question for their soap, and an injunction to restrain the .defendants from interfering with their manufacture, and damages. The defendants by a counter-clnim asksd for an injunction to'restrain the plaintiffs from using labels bearing a trade-mark only colonrably differing from that of the defendants, and an account of all soap sold by the plaintiffs as and for soap of tho defendants, and of the profits made thereby, and payment of the amount of such profits. The defendants delivered interrogatories to the plaintiffs, one of which required the plaintiffs to set forth the respective quantities of soap sold by them in connection with their labels from 1862 to 1879 inclusive, distinguishing the quantities sold in each of those years. The plaintiffs declined to answer this interrogatory, on the ground that the accounts asked for formed part of the relief sought by the counter-claim, and that the defendants were not entitled to those accounts until they had obtained judgment in their favour on the counter-claim, that the accounts were not necessary for the trial of the action, and the interrogatory not material at the present stage of the action. Bacon, VC, held that the plaintiffs were not bound to answer this interrogatory, and the Court of Appeal affirmed his decision. The appellants relied mainly upon the decision of the Conrt of Appeal in6,o«Kdersv./on(!s(26W.R.266,L.E.7 Ch.D.435). Jessel, U.K., said that the rule that one party to an action was not entitled, under the name of discovery, to obtain the particulars and details of the evidence of the other party was of extreme importance in the conduct of litigation, and ought to be strictly observed. The object of it was to guard against that which might be done by dishonest litigants. On the other hand there was a rule that full discovery of the nature of the case made by, and of the written documents in the possession of, hiB opponent must be given to each side. What the defendants were really asking was to see the details of the plaintiffs' evidence. If a party was surprised at the trial by the evidence given by his opponent, he could either apply to the judge to adjourn the trial, or move for a new trial on the ground of surprise. As his lordship understood Saunders v. Jones, the principal point of the decision was this: that the plaintiff would have been entitled is a common law action to particulars of the misconduct alleged against him, and that in such a case the practice of the Court of Chancery was to allow those particulars to be obtained by means of interrogotories, and that there was no reason for departing from that practice. The other point in that case was this: that the court had a discretion to require a defendant to answer as to the result of an account before the trial. In Saunders v. Jones the judge of first instance had required this to be done, and the Court of Appeal refused to interfere with the exercise of his discretion, and, moreover, approved of what he had done— Solicitors, C. E. Withall; Lucas <fc Son.

CoMrnosiisE—InfantsJurisdiction.—In a case of Jn re Birchall, before the Court of Appeal on the 5th inst., the question arose whether the court has jurisdiction to order a compromise to be carried into effect as beneficial to infants, when it is opposed by their guardian and by their legal advisers. The action was brought for the administration of the estate of a testator, and in it a claim was made by the testator's widow to some property which he had bequeathed on trnst for two infants, on the ground that it represented property of hers, which he bad not reduced into possession, and of which she alleged that he was a trustee for her. When the matter came before Malins, V.C., he suggested that the widow should take a part of the property in dispute, and that she should relinquish her claim to the remainder of it. The guardian of the infants objected to this compromise, and their counsel refused to consent to it. But the ViceChancellor, in Bpite of their opposition, referred it to chambers to inquire whether the compromise would be for the benefit of the infants, and he afterwards approved of it, and ordered that it should be carried into effect. The Court of Appeal (jessel, M.R., and James and Cotton, L.JJ.) held that there was no jurisdiction to make such an order. Jessel, M.B., said that neither he nor the Lords Justices had ever heard of such a course being adopted before. The court had jurisdiction to approve of a compromise on behalf of infants, btit it could not force a compromise upon them contrary to the opinion of their legal advisers. If a next friend or guardian was refusing his assent to a compromise, which was evidently for the benefit of infants, proceedings might be taken to remove him, His own practice was, before approving of a compromise on behalf of an infant, to require that it shonld be assented to by the next friend or guardian, and also that the nfant's solicitor shonld depose that he considered the compromise to be for his benefit, and that his counsel should give an opinion to the same effect.—Solicitors, Jtidsdale, Craddock, ifc Co.; Gregory, Eoucliffes, St Co.

Life Assurance Company; Winding Up Policy; Holder—CreditorDischaroing Fiat Life AssurAnce Companies Act, 1870 (33 4 34 Vict. C. 61), s. 21.— In a oaBe of In re Great Britain Mutual Life Assurance Society, before the Master of the Rolls on the 6th inst., a motion was made by the society that a fiat on a petition for the winding np of the sooiety might be struck out, and that the petition might be referred to ohambers according to the mode pointed out in section 21 of the Life Assuranoe Companies Aot, 1870 (33 & 34 Viot. o. 61). By that section "the court may order the winding up of any company in accordance with the Companies Aot, 1862, on the application of one or more policy holders or shareholders, npon its being proved to the satisfaction of the court that the company is insolvent." The section then provides how the insolvenoy is to be ascertained; for security for costs, and that the petition is not to be heard until a prima facie case of solvency is to be asoertained. It has been the praotioe with petitions under the section to mark them with a special fiat ordering them to be referred to the jndge in chambers to inquire whether a primd facie case of insolvency within the meaning of section 21 is established, and to consider the security for costs to be given; and that the result should be certified to the court. The petitioner was the holder of a policy in the society on the life of one Fopham, who died in April, 1879; the claim was disputed by the sooiety, and an action brOnght npon the polioy in June, 18S0, and notice of trial given in July, 1880. On the 27th of October the company's solioitors wrote to the petitioner offering terms of oompromise of the action, to whioh her solicitors replied that they wonld consult their client on the matter. On the same day, without any further communication with the society, the petitioner presented a petition under tho Companies Aot, 1862, for the winding up of the sooiety, and the petition was advertised in the usnal way under that Act. The grounds of the petition were the insolvency of the society, and also that no extraordinary meeting bad been oalled pursuant to their deed of settlement for the consideration of the petitioner's claim. The petition had not yet been heard, and the above motion was now brought, on the ground that the petition was not presented bond fide, and farther that the practice under the Life Assurance. Companies Act shonld have been followed. Jessel, M.R., was of opinion that the construction of the 21st section of the above Act did not admit of doubt, and that, according to the literal interpretation of the section, the petitioner was a " polioy holder." That being so, the petitioner had not the ordinary right of presenting a petition as a creditor under the Companies Aot, and she ought to have followed the praotioe nnder the Life Assurance Companies Act. The motion must, therefore, be allowed with costs.— Solicitors, Prideaux $ Son; Longcroft $ Myers.

LeaseCovenantBreach"nuisance Oe AnnoyAnce"SanatoriumInjunction.—In a case of Watson v. Leamington College {Limited), also before the Master of the Rolls on the 6th inst., a motion was made to restrain the defendants from using a house and premises at Leamington as a sanatorium in breach of a covenant in a lease of the property not to carry on any business or trade on the premises, or do anything which should be a nuisance or annoyance to the neighbourhood. The defendants intended to use the property for the purpose of accommodating six boys in connection with their college, and who required temporary removal. It was argued by the plaintiff that a bouse used for the purpose of locating boys, who might bo suffering from fever or any other infectious disease, would be au annoyance within the above covenant. Jessel, M.R.,said, that in his opinion, the covenants were separable, and there was not only the covenant not to carry on any trade or business, but also the separate covenant not to do anything which could be a nuisance or annoyance to the neighbourhood. He was of opinion that having six boys in a sanatorium who were affected with fever or other infectious diseases, must, of necessity, be an annoyance to tbe neighbours if it was not a nuisance. It perhaps might be difficult to appreciate the difference between the meaning of the words nuisance and annoyance, but as both were used, it was evident that the word annoyance was intended to mean something less than nuisance. As he considered tho sanatorium would be an annoyance to the neighbours, he should grant the injunction asked for.—Solicitors, Field & Co.; Hunt $ Son.

PracticeDismissed Action—Extension Of Time For Appealing Against Master's Order.Carter v. Stubbs, -which came before the Common Pleas Division on November 4, was a case in which there were three appeals from three orders made at chambers nnder somewhat peculiar circumstances. The defendant in the action administered interrogatories to the plaintiff, bnt the latter not having answered them, Master Francis made an order at chambers dismissing the plaintiff's action unless he filed answers to •the interrogatories witbin seven days. This order, however, was not strictly complied with, for the plaintiff did not file bis answers until the eighth day. The defendant thereupon contended that the aetion was dead and could not be revived, the importance to him of maintaining this view being that, supposing the action to have abated, and a fresh action to tie necessary, the Statute of Limitations had intervened and barred the greater portion of his claim. On the 9th of July last, however, Master Gordon, on the application of the plaintiff, made'anorderrescinding the order of Master Francis, and thereby restoring the plaintiff's action. The defendant appealed against this order, and on the appeal coming on before Hawkins, J., at chambers, on the 20th of July, he adjourned the appeal to the 4th of November, making, however, at the instance of the plaintiff, two orders in his favour; one extending the time for appealing against the order of Master Francis dismissing the action, and the other substituting fourteen days for the seven days within which, nnder Master Francis' order, the interrogatories should have been answered. All three appeals now came on before the court. On behalf of the defendant it was urged that the action became dead owing solely to tin neglect of the plaintiff to file his answers within the given time, and that the plaintiff was not entitled to an extension of time, and that ord. 37, r. 6, did not apply to a case like the present, where the defendant had in no way contributed to the plaintiff's mistake. The plaintiff"s contention wasthat,onthe authority of. Burke v. Rooneg (27 \V. R. 915), he was entitled to the indulgence asked. The court (lindley and Lopes, JJ.), decided that the order of Master Gordon must be set aside, and the orders of Hawkins, J., coufirmed. They thought that the words ot ord. 57, r. 6, were large enough to permit -of the plaintiff's time being extended.—Solicitors, Hunter, Gieatkin, <k Haynes; Wild, Barber, <fc Brown.

CASES BEFORE THE BANKRUPTCY REGISTRARS. Before Me. Registrar Pepts. Not. 9.—Ex parte Vendrell, Re Ramos and Vendrell. TXotitx of an application for a new first meeting of creditors under a liquidation petition should be given to a creditor who has dissented from the resolution proposed at the first meeting.

This was an application on behalf of Firmin Vendrell, one of the debtors, for leave to summon a new first meeting of creditors nnder his separate estate.

On the 26th of July last, the debtors, Messrs. Ramos and Vendrell, presented a petition for liquidation by arrangement or composition with their creditors. At the tirst meeting of the creditors of the joint estate, a resolution was passed by which the creditors accepted a composition of one shilling and sixpence in the pound, and the amount had since been paid, the resolution being duly registered. At the first meeting under the separate estue of F. Vendrell, the creditors accepted the like composition, but, upon the latter resolution being presented tor registration, it was ascertained that in consequence of the omission to give notice to one of the creditors (Mr. Chambers), the necessary majority had not been obtained.

The debt of Mr. Chambers, which amnnnted to £102, had been incurred by the wife of the debtor Vendrell in reference to a loan of a larger amount made to her for the purpose of carrying on a lodging house, which she conducted as a separate business free from the control or interference of her husband. Vendrell stated that he bad executed a bill of sale, jointly with his wife, upon a portion of her separate property as security for the advance. No notice had been giTen to Chambers of the meeting—Vendrell allegiug that the omission arose through ignorance—and he also stated that he was informed he had joined in a covenant to repay the amount of the loan.

Edward Pollock, in support of the application, cited Ex

parte Gibbs, In re Webb (L. R. 10 Co.), in which, at p. 384, Mellish, L.J., said, " But if from some accident or some mistake on the part of the debtor, no valid resolution has or could be passed, then it appears to me that, fairly considering the Act (though it is true there is neither rule uor section ordering it), a fresh meeting may be held."

Mr. Registrar Pepvs.—Was there any opposition to the resolution?

Pollock.—By one creditor.

Mr. Registrar Pepys.—Tf does not appear that the dissenting creditor has received any notice of this application. Before I make any order for a new meeting, I think you must give notice to him. The application may be renewed.

Solicitors, Angell, Imberl Terry, Sf Page.

SOLICITORS' CASES.* Common Pleas Division: (Sittings in Banc before Lindley and Lopes, JJ.) Nov. 4.—Re A Solicitor. This was an application for a rule calling on a solicitor to show cause why he should not answer certain affidavits, or be struck off the rolls.

In compliance with the instructions of a Mr. Savil, the solicitor commenced an action against one Hardy for the recovery of £109 9s. 6d. Ultimately, Hardy agreed to pay the debt by instalments through the solicitor, who received the money but failed to pay it over to Mr. Savil, although repeated applications were made to him for it. Subsequently, the solicitor gave a promissory note for the amount, but it was dishonoured at maturity, and as no settlement could be obtained, these proceedings were instituted. The Court granted a role nisi.

Nov. 4.—Re a Solicitor.

This was a motion for an attachment against a solicitor.

English Harrison stated that in the course of 1877 and 1878 the solicitor acted for a Mr. Genning, who, on the completion of the business, obtained an order, dated the 30th of July, for the solicitor to deliver his bill of costs, and to give credit for certain sums of money received by him. On the 14th of January, 1880, a peremptory order was made to the same effect, but both these orders had been disregarded, except the delivery of a small bill relating to certain liquidation proceedings which formed only a part of the whole. Up to the time of making this application, no account of the money in the solicitor's hands had been rendered, nor had the whole bill been delivered.

R. Vaughan Williams, for the solioitor, stated that the client had formerly filed a petition for the liquidation of his affairs, and he then returned his solicitor as a creditor for a large sum. A composition of sixpence in the pound was accepted and received, and what the client was asking was really the items of a bill which the solicitor believed was discharged by the payment of sixpence in the pound, and he therefore contended that the bill should notinclude matters concerning which advantage had been taken of the Bankruptcy Act, 1869.

Lopes, J.—But what right had the solicitor to disobey the orders f

R. V. Williams.—If the case is to be decided on its merits, I have a complete answer; if it is not, I make these objections:—1. That there has been no personal service of the order on the solicitor, nor was the original shown to him at the time of service as it should have been. 2. Before a motion for an attachment is made, the person sought to be attached should be served with copies of affidavits, and that has not been done in this case.

English Harrison.—I shall submit that, when I appeared ex parte, I had to show that the order had come to the knowledge of the solioitor, and I could not do that without showing that he received it. If he received it that is sufficient.

R. V. Williams.—No, there must be personal service. The order is to give effect to 6 & 7 Viot. c. 73, which deals with the taxation and delivery of solicitors' bills. The objeot of delivery is that a bill may be taxed; the bill must therefore be taxable, whioh the one asked for is

* Reported by W. Blew, Esq., Barrister-at-Law.

« PreviousContinue »