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as 1 believe, the courts could by general agreement and rules alter the practice, no particular master or judge or court can." But could a Master, even if relieved of the fear of appeal, decide upon different principles than those which now govern him? We take it that the unfettered Master, in deciding the lump sum, must take into account all necessary work done by the solicitor. If he did not solicitors would cease to undertake litigation. The learned Lord Justice says "merely to pay according to the work done is wrong." But what else could his unfettered taxing-master reasonably take as his guide in firing a lump sum? It is clear he cannot reasonably take the amount at stake, for the amount at stake has little or nothing to do with the trouble incurred by the solicitor. An action for £100 may necessitate infinitely more trouble than an action for £10,000. True, the Master may take in consideration whether the work done was necessary, but so he does now. We believe that the Lord Justice will find that the notion which underlies his letter, that under the present system solicitors take unnecessary steps for the sake of heaping up costs, is not borne out by facte. There may be a small section of practitioners who are open to the charge, but we confidently affirm that the great bulk of the profession are wholly innocent of it.
THE CONVEYANCING BILL,
Passing over for the present the clauses relating to notice and the discharge of incumbrances on sale, we come to the provisions intended to shorten conveyances. Clause 9, in effect, provides that general words shall be implied in all conveyances made after the commencement of the Act, unless a contrary intention is expressed in the conveyance. The only objection we see to this is that the clause lays a trap for an unwary practitioner. It is provided that a conveyance of land shall be deemed to include, " and shall by virtue of this Act operate to tonvey, with the land, all, &c." Beference will have to be constantly made to the form of words which is to be implied, or something may pass which it is not intended shall pass by the conveyance. Or, on the other hand, something will be omitted which ought to be specified. For instance, the form of general words to be implied in conveyances of land does not include "mines and minerals," and any conveyance made after the passing of the Act will, therefore, probably contain an express grant of mines and minerals. It seems to us that the more convenient course would have been to include mines and minerals among the general words, leaving it to the grantor to express a * contrary intention" if he does not mean them to pass. It appears that the estate olause must still be inserted, although this appear to have been overlooked in the short form of "conveyance on sale" in the 3rd schedule to the Bill. With regard to this form, we observe that the singular flaw we pointed out last year has been amended. The land is no longer conveyed to M., the purchaser, " to hold to M. in fee," but " to hold to and to the use of M. in fee simple."
Clause 10 provides for the implication of the usual covenants for title and against incumbrances. So far as we can' make out, it is not optional with the conveying party whether he will allow these covenants to be implied, or, by expressing a contrary intention, exclude them. The section commences, " In a conveyance there shall, in the several cases in this section mentioned, be deemed to be included, and there shall, in those several cases, by virtue of this Act, be implied, a covenant to the effect in this section stated," &c. It is subsequently provided that "a covenant implied as aforesaid may be varied or extended by deed," but no provision appears to be made for the case of a vendor declining to enter into any covenants, or (as it seems to us) for the case of a
beneficial owner selling for valuable consideration, and choosing only to enter into a covenant against incumbrances; for (see paragraph A) " in a conveyance for valuable consideration other than a mortgage" the usual covenants for title "by a person who is expressed to convey as beneficial owner " are to " be deemed to be included."
With regard to the execution of the conveyance, it is proposed, by clause 11, that the rale laid down in Viney v. Chaplin (4 Drew. 237), that a purchaser may in general insist on having the conveyance executed in his own presence, shall be rescinded, and that the purchaser shall be entitled, at his own cost, to have the execution of the conveyance attested by some person appointed by him, who may be his solicitor.
Section 12 deals with covenants for production. It is proposed to substitute for these an "acknowledgment in writing" of the right to production and delivery of copies, and this acknowledgment is to bind the documents to which it relates in the possession of every person having possession of them for the time being, and every person having possession of the documents is to be bound specifically to perform the obligations imposed by the acknowledgment, unless prevented by fire or inevitable accident. The obligations imposed by an acknowledgment (which only prevail in the absence of the expression of contrary intention) ore, in most respects, similar to those imposed by the ordinary covenant for production; but an acknowledgment is not to confer any right to damages for loss or destruction of, or injury to, the documents to which it relates. If it is desired to have an obligation to keep the documents safe, whole, uncancelled, and undefaced, the person retaining the documents must give an undertaking in writing for the safe custody thereof. All costs and expenses of, or incidental to, the specific performance of any obligation conferred by an acknowledgment are to be paid by the person requesting performance. Persons claiming to be entitled to the benefit of an acknowledgment are enabled to apply to the High Court for an order for production or delivery of copies or extracts, and a person claiming to be entitled to the benefit of an undertaking for safe custody of documents may apply to the court to assess damages for any loss or destruction of, or injury to, the documents; and in either case the costs are to be in the discretion of the court. The practical result of course is, that in case no contrary intention is expressed, and both the acknowledgment and undertaking are entered into by the person retaining the deeds, the benefit of the ordinary covenant for production is made to run with the land in right of which the covenant is given. Having regard to the prevalence of tho practice of indorsing notice of the covenant for production, and thereby enforcing an equitable right to production, we do not see that this need be objected to.
We propose next week to deal with the provisions as to leases and mortgages.
In the Hoose of Commons, on the 24th ult., Mr. H. Fowler ssked the Attorney-General whether, upon the Order in Council for consolidating the common law divisions of the High Court of Justice coming into operation, arrangements would be made for complying with the 30th section of the Judicature Act, 1873, which required continuous sittings for the trial of causes in London and Middlesex; and whither he could state how many judges would sic for the trial of causes in London and Middlesex after the expiration of the winter assize, and before the commencement of ihe Easter Vacation. The Attorney-General said that since receiving notice of the question he had communicated with the Lord Chancellor and also with Lord Coleridge on the subject, and that he had their authority for saying that they fully appreciated the necessity, in the interest of the public, of having continuous sittings for Middlesex and London, and every effort would be made to promote that object. He was not certain as to the exact number of judges who wonld sit, but he believed that six would be sitting for some time.
EX PARTE MATHEWS, RE SHARPE. [To the Editor of the Solicitors' Journal.'] Sir,—Though we are the solicitors for the appellant in this case, we do not think there can be any impropriety in our pointing out what appears to us to be the effect—we may venture to say the disastrous effect— of the decision, which amounts to this, that whenever a debtor has a ] udgment against him available for execution, then, whatever his assets, however small, even only snfficient to pay creditors it may be only a farthing in the pound or less, a resolution for liquidation of his affairs by arrangement, and not in bankruptcy, and giving him his order of discharge, is valid, and this although if he was made a bankrupt he could not obtain his discharge until he paid ten shillings in the pound. This is undoubtedly the effect of the decision, and Lord Justice Lush went so far as to say that he would have arrived at it even if Ex parte Oolding had not been previously decided. Lord Justice Cotton, however, came to the conclusion with reluctance, saying -that he could not distingu ish between the present case and Ex parte Oolding. We may therefore assume that he' would not have concurred in the latter decision. Creditors really ought to be protected, and it is high time, seeing what must now be taken to be the law, that a new Bankruptcy Act was at once passed.
Spyeb & Son.
CASES OF THE WEEK.
Bui. Of Sale—Statement Of Consideration—Bills OF Sale Act, 1878, s. 8.—In a case of Ex parte Winter, before the Court of Appeal on the 24th ult., a question arose as to the sufficiency of the statement of the consideration in • bill of sale. The bill of sale contained a recital that the mortgagor was indebted to the mortgagee in the sum of £1,444 14s. 3d., for money lent, and that, the mortgagor being unable to pay tbe same, he had, in order to induce th» mortgagee not to institute proceedings against him, agreed to execute the deed, and then, "in pursuance of rach agreement, and in consideration of the premises," the mortgagor covenanted to pay the debt on demand in writing. And, "for the consideration aforesaid," the mortgagor assigned to the mortgagee his furniture and other chattels as security for the debt. It was not disputed that the XI,444 1 4s. 3d. was really advanced by the mortgagor to the mortgagee, but the grantee on examination stated that the recital in tbe bill of sale that the grantor bad agreed to execute it in order to induce the grantee not to institute proceedings against him was not true, inasmuch as he bad never threatened to take proceedings against the grantor. It appeared, however, that the bill of sale was prepared by the grantor's solicitor from his instructions. The judge of the Newcastle County Court held that the consideration had not been truly stated in the deed, and declared the deed veid aa against the trustee in the liquidation of the grantor. "Bacon, C.J., reversed this decision, and his order was affirmed by the Court of Appeal (jbssel, M.R., and James and Lush, L..JJ.). Jessel, M. II., said that he was at a loss to see any inaccuracy whatever in the statement of the consideration, though he desired to add that a small inaccuracy in the statement would not avoid a bond fide bill of sale tinder the Act. Substantial accuracy was all that was required. The Act was not intended to defraud the holders of bills of sale, but to protect the creditors of the grantor from frauds. In tbe present case the deed was prepared by the grantor, and was presented by him to the grantee as his statement of that which was passing through his own mind. There could be no doubt that the recital was true, and that the grantor executed tbe deed to prevent proceedings being taken against him. There was no statement that proceed'hags had been threatened by the grantee, bnt that was the grantor's motive for executing the deed. Jambs, L. J., said '■that what the Act requires is this: that tbedeed should state
honestly what was the real legal consideration for it, and that was all that it required. The consideration need only be stated in the way in whiob it would be stated by an ordinary mortgagor and mortgagee of real estate. The Act was not intended to impose any greater burden on the holders of bills of sale. It was intended to prevent such statements aa that £100 had been paid by the grantee to the grantor when in fact only £90 had been paid, £10 being kept back by the grantee for interest.—Solicitous, Pyke $ Parrot t; E. Flux $ Leadbitter.
Trustee Act, 1850, s. 3—Vesting Order—AppointMent Of New Trustee—Lunatic Trustee—Cestui Que Trust Absolutely Entitled. — In a case of In re Holland, before James and Cotton, L.JJ., on the 26th ult., the question arose whether, when there is a sole trustee of leaseholds on behalf of a cestui que trust who is sui juris and absolutely beneficially entitled to the property, and the trustee becomes a lunatic, the court will, on the application of the cestui qite trust, make an order vesting the property in him at once. Their lordships refused to do this, and held that the proper course was to have a new trustee appointed, and to apply for an order vesting the property in him, otherwise, as Cotton, L.J., said, the court wonld be administering the trust—a course which was contrary to the practice under the Trustee Act.—Solicitors, Norris, Aliens, <t- Carter.
Lunacy—Death Of Lunatic—Dispute As To Heirship —Action At Law—Inspection And Production Of Deeds Deposited In Lunacy Office.—In a case of In re Smyth, before James and Cotton, L.JJ., on the 26th ult., a question arose aa to the right to inspection of the title deeds of real estate of a deceased lunatic which had been deposited in the Lunacy Office. An action was pending in the Exchequer Division to try the right to some real estate of which the lunatio had died possessed. He had died intestate, and without issue, or any nearer relation than cousins. The defendant in the action waa the lunatic's heir-at-law, who had been found to be such in the lunacy proceedings. The plaintiff alleged that he was the lunatic's heir ex parte maternd. and that tbe property in question had descended to the lunatic from his mother. The defendant petitioned in the lnnacy that his solicitors might be at liberty to inspect the deposited deeds, and that they might be pro J need at the trial of the action. The application was resisted by the plaintiff, on whose behalf an affidavit was made by his solicitor that the lunatic had inherited the property in qnesiion from his mother, and that the plaintiff was the heir-at-law of the mother, and as such entitled to the property, and to the deeds in question, and thai the defendant was not in any way related to the mother. This evidence was not contradicted. Their lordships, however, held that the prima facie right of tbe defendant as heir-at-law to inspection of the deeds was not displaced. He could not be said to be without any interest whatever in the question to be tried, for the deeds might, in some way, negative the plaintiffs title. The order asked for wss accordingly made. — Solicitors, Chester, Mayhew, & Co.; Peacock <£■ Ooddard.
Action Of Deceit—False Representations—DirecTors And Promoters Of Company—Contract To Take Shares—Prospectus.—In a case of Arkicright v. Newbold, before the Court of Appeal, on the 28th ult., the distinction between an action of deceit and an action to set aside a contract was very clearly pointed out by the court. The action was brought by a shareholder in a company, which had proved unsuccessful, against the former directors and solicitors, who were the promoters of the company, and two of whom were the vendors to the company of a property and business, to acquire which the company was formed, to recover damages, on the ground that tbe plaintiff had been induced to apply for and take shares in the company by misrepresentations contained in a prospectus wbioh had been issued by tbe defendants. The alleged misrepresentation was contained in the following passage :—" The remuneration of the directors will be fixed by the shareholders, and it is proposed that they shonld be paid only by a commission on the profits, no promotion money whatever beini paid to them by the company, and all formation expenses being paid by the vendors."
The contract for the purchase of the property by the company, which was stated in the prospectus, fixed the purchasemoney at £32,000, of which £15,000 was to be paid in 3,000 shares of the nominal value of £5 each, which were to be allotted to the vendors as fully paid up. After the agreement for purchase had been concluded, and after the issue of the prospectus, the vendors transferred to the other defendants 800 of their fully paid-up shares, representing a nominal Talue of £4,000. Fry, J., held (28 W. R. 828) that, though section 3S of the Companies Act, 1867, did not apply, because it was not proved that the transfer of the 800 shares was made in pursuance of any binding contract enteied into before tho conclusion of the agreement for purchase, though there might have been something in the nature of an understanding, yet the statement in the prospectus was, under the circumstance?, fraudulent in fact, and that the plaintiff was entitled to the relief which he claimed. This decision was reversed by the Court of Appeal (james, Cotton, and Lush, L.JJ.), who were of opinion that the above statement in the prospectus was strictly accurate. James, L.J., thought that Fry, J, had confused two different kinds of wrong and two different kinds of remedy; be had confused the right to bring an action of deceit with the right to set aside a contract. To support an action of deceit the plaintiff must prove that he had been deceived by a false statement made by ihe defendant. The omission to state that which qualified what was stated would be equivalent to a false statement; but mere silence, though it might give a right to set aside a contract, could not be the ground of an action of deceit. James, L.J., and Cotton, L.J., also intimated an opinion, (hough it was not necessary for the decision of the case, that, if a statement was true at the time when it was made, but became untrue before the completion of a contract which was induced by it, the mere omission to communicate the altered state of circumstances would not support an action of deceit against the person who simply maintained silence.—Solicitors, Clarke, Woodcock, &• Byland; Phelps, Sidgwick, <fc Biddle.
Incumbents' Resignation Act, 1871, s. 10— Aerears Op Pension—Action By Former Incumbent Against Present Incumbent—Set-off.—In a case of Galhercole v. Smith, before the Court of Appeal on the 1st. inst., a question arose upon the construction of section 10 of the above Act, which provides that the peosion allowed to an incumbent who retires under the provisions of the Act "shall be a charge upon the revenues of the benefice, and Bhall be recoverable as a debt at law or in equity from the incumbent of the said benefice by the retired clerk, his executors, administrators, or assigns, but such pension shall not be transferable at law or in equity." The action was brought by the incumbent of a benefice, who had retired under the provisions of the Act, subject to the payment of a pension halfyearly, against the present incumbent for the recovery of three half-years' arrears of the pension. The defendant claimed to set off against the arrears a judgment sgainst the plaintiff, a mortgage of the advowson by the plaintiff, and a sequestration of the benefice of which the defendant had taken assignments. Jeasel, M.R. (contrary, it was said, to the decision of Lord Coleridge, C.J., in another case), held (24 Solicitors' Journal, 630), that the effect of section 10 was to create an inalienable provision for the retired incumbent, and that no right of set-off was any answer to the plaintiffs clr.im. This decision was affirmed by the Court of Appeal (james, Cotton, and Lush, L.JJ.). James, L.J., said that the word " transfer " was a term of the widest import, and must be held to include an involuntary disposition by act of law—e.g., a bankruptcy—so as to prevent the pension from vesting in the trustee in bankruptcy of the retired incumbent. The object of the Aot was to make a provision for the maintenance of clergymen whose age or infirmities rendered it desirable for them to resign their benefices, and by the words "forbidding transfer" it was intended to prevent the retired incumbent from being deprived of that maintenance directly or indirectly.—Solicitors, Venn f Woodcock; Parkers.
Vendor And Purchaser—Stamp Dutt—Mortgage Deed—Ad Valorem Duty—Stamp Act, 1870, s. 17.— In a case of Whiting to Zoomes, before the Court of Appeal on the 1st inst., a question arose as to the right of a purchaser of leasehold property from a mortgagor to require
that the mortgage deed of the property should be duly stamped at the expense of the vendor, though the mortgagee was willing to join in the assignment to the purchaser. The mortgage deed had been stamped only with a 10s. deed stamp, no ad valorem duty having been paid. Jessel, M.R., held (28 W.R. 822, L. R. 14 Ch. D. 822) that the purchaser was entitled to have the mortgage deed duly stamped with the proper ad valorem duty at the expense of the vendor before completion of the purchase, on the ground that the deed might be the purchaser's protection against a mesne incumbrance by the vendor. The purchaser would get the legal estate without notice, but he could not prove that he bad got that estate unless he could produce the mortgage deed properly 'stamped. This decision was affirmed by the Court of Appeal (james, Cotton, and Lush, L.JJ.) upon the same ground.—Solicitors, Htiiter, Gwatkin, $ Baym; Loxley <£• Morley.
Practice—Amending Whit And Statement Of Claim— Special Leave—Affidavit—C Boss-examination Ox AffiDavit—costs.—In a case of Conyteare v. Lewis, before the Master of tho Rolls on the 25th ult., a motion was made for directions under the following circumstances. It appeared that the defendants had delivered their defence in July, 1880, and the plaintiff in January last took out a summons' for leave to amend his writ and statement of claim. Na reply had been delivered. In support of the summons the plaintiff filed a formal affidavit stating that circumstances had arisen since the issue of the writ necessitating the amendment. The defendants filed affidavits in opposition to the summons and the hearing was adjourned to enable affidavits to be filed in reply. On the 10th of February the plaintiff was served with notice of cross-examination upon his affidavit before the examiner, and on the 16th he attended and was cross-examined for an hour before the examiner, the allegation in the suit of the defendants being that the plaintiff was only a dummy put forward by his father, and that he had no real interest in the action. The plaintiff was again cross-examined by another defendant on the 17th of February, and the further cross-examination was adjourned to the 14th inst. The plaintiff now moved for direction that he might amend his writ without any further cross-examination. Jessel, M.R., was of opinion that the course taken by the defendants was not justified under the circumstances. An application had been made for leave to amend the writ and statoment of claim, and in respect or the latter amendment no leave was necessary. It was not denied by the defendants that the new matters sought to be introduced' were germane to the action, and in such a case it was not the practice in his chambers, on an application for leave to amend the writ, to require any affidavit where there was no dispute that the amendments were germane to the action. An affidavit was, however, made, and in his opinion it was improper to have cross-examined the plaintiff upon thai affidavit, and an abuse of the practice of the court, and he should certainly make the defendants pay the costs of the cross-examination, unless it should turn out hereafter that there was any justification for the course adopted by them. He should give the plaintiff leave to amend his writ and statement of claim, and the costs of the motion and of the summons would bo costs in the action.—Solicitors, Bores $ Pattisson; Trinders it Curiis-Hayward; Manns $ Longdm.
Covenant—Injunction—Acquiescence—Waiver.—In a case of Kelsey v. Dodd, before the Master of the Rolls oa the 28th ult., a question arose whether a covenant not to carry on the business of a beershop keeper could be enforced under the following circumstances. The covenant was contained in a deed of covenant, by which certain land was sold for the purpose of being used for building purposes. The piece of land subject to the covenant was about six acres, and according to the evidence there had been numerous beersbops upon it for some years. The plaintiff owned a public-house, and complained that the defendant's beershop interfered with his business. It appeared that the defendant bad obtained a licence for his beershop, and in August, 1878, the plaintiff was aware of this, and in July, 1879, gave the defendant notice, requiring him to discontinue using his house as a beershop. The plaintiff, however, took no further step uatil August, 1880, when he issued his writ. It also appeared that numerous other beershops since the year 187S bad beer* established on the property. Jessel, M.R., was of opinion that under the circumstances the covenant relating to the beershop in question had been abandoned or so waived as to preclude the plaintiff from now enforcing the same.— ^solicitors, Collyer-Bristow, Withers, <£• Russell; Hare di Jell.
Coi'nteu-clatm—Extent Of Relief—Cause Of Action Ibisino After Date Of Writ In Original Action— Judicature Act, 1873, s. 24, Sub-section 3—Obd. 19, R. 3—Order 20.—In a case of Beddall v. MaitUind, before Fry, J., on the 25th nit., an important question arose as to the extent of the relief which can be given on a counterclaim. The defendant had delivered a counter-claim, and by it he claimed damages in respect of an injury ■which had occurred between the date of the writ and tbe date of the delivery of the counter-claim. In opposition to this claim reliance was placed on the decision of Jessel, M.R., in Tie Original 'Hartlepool Collieriet Company v. Gibb (L. R. 5 Ch. D. 713), that damages cannot be given on a coacter-claim in respect of anything which happened after the issue of the writ in the action. Fry, J., differed from this decision, and allowed the defendant to go into evidence of tbe alleged injury subsequent to the date of the writ. He said that the point was one of very great importance, as regulating tbe procedure under the Judicature Act, and Le had great hesitation in differing from the Master of the Rolls. But he had formed a clear opinion, and felt bound to express it. The words of sub-section 3 of section -24 of the Judicature Act of 1873 were of the utmost generality, and appeared to him to give to the defendant to an action an independent right to commence an independent action against tbe plaintiff by means of what was in the rules called a counter-claim, and hisMordship could find nothing in the letter or in the spirit of the Act to confine tbe relief which was to be given on the counter-claim to some cause of action which was vested in the defendant at the commencement of the original action. And he could find nothing in rule 3 of order 19, or anywhere else in the rules, to limit the generality of the words of the Act. Rule 3 of order 19 used 'the words, "whether such set-off or counter-claim sound in damages or not," and he thought it was evident from tbem that there was no intention of confining the counter-claim to a claim for damages or a claim of the same nature as that in the original action. If the defendant might set up a claim of his own it did not necessarily mean that it must he a claim ejutdem generis with that of the plaintiff. The plaintiff's claim might be for damages; the defendant's might be for an injonction or some equitable relief not sounding in damages. It was not, therefore, confined to set-off or to something which would counteract the relief claimed by the plaintiff. It was true that by order 20 express provision was made for pleading any ground of defence which had arisen after action brought, and from that tbe Master of the Rolls had inferred that, in the absence of any such provision as to a counter-claim, it must be taken to be limited to causes of action which had arisen before the commence-Blent of tho original action. His lordship, however, would rather draw the inference that such a provision was unnecessary as to a counter-claim, because the right had already been exprfssly given by the Act. He thought the Tiew of the Master of the Rolls was open to this serious objection, that if a defendant had two causes of action against the plaintiff, one of which arose before the issue of the writ in the original action, and tbe other which arose after, be must split his demand. He might ventilate the one cause of action by means of a counter-claim, while, in respect of the other he must issue an independent writ. But the spirit of tho Judicature Acts was to prevent multiplicity of aetions, and especially to prevent multiplicity of procedure, and to enable all questions between a plaintiff and a defendant to be decided in one proceeding. His lordship was Tery much confirmed in his view by what was said by Cockburn, C.J., and Manisty, J., in Stooke v. Taylor (29 W. R. 49, L. R. 5 Q. B. D. 569), and by Brett, L.J.,in Winter. JieU v. Bradnum (26 W. R. 353, L. R. 3, Q. B. D. 324), which leaded to sbow that a counter-claim is a wholly independent action, though for convenience of procedure the claim and counter-claim are combined in one action. No doubt in Vatatseurv.Krupp (L. R. 15 Ch. D. 474) the Master of -tbe Rolls held that a counter-claim is part of the original action, and that, when tbe original action is discontinued, the counter-claim is gone too, and the defendant must assert
his claim in a fresh action. But if the views of Cockburn, C.J., Brett, L.J., and Manisty, J., were right, it would seem at least doubtful whether that decision of the Master of the Rolls was correct. And his lordship thought it would result iu great inconvenience, for, if the defendant had brought a separate action, he could go on with it, whether the plaintiff went on with his action or not; whereas, if the defendant proceeded by way of counter-claim, his right might be defeated, after all the expense had been incurred, by the plaintiff's dropping bis independent action. His lordship hoped that the question would soon be decided by the Court of Appeal ; but meanwhile, the matter being one of great and general interest' he thought it right to express his own view.—Solicitors' F. C. Tudor; E. Johnson.
Tenant For Life And Remainderman—Leaseholds —Repairs—Trustee—Receiver.—Io a case of In r» Fowler, before Fry, J., On the 26th nit., a qnestion arose as to the right of a trnstee of leaseholds, bequeathed on trust for a tenant for life and remaindermen, to compel tbe application of the rents in the repair of the property. Leasehold houses were bequeathed by a testator to a married woman and two other persons (the three trustees being also the exeoutors) on trust for the married woman for her separate use, without power of anticipation, for her life, and after her death ou trust for her children. She was allowed to receive tbe rents. The houses were not kept in a proper state of repair, and the action was bronght by one of the trustees against the married woman and her husband and the third trustee, claiming the making of some provision for the repair of the houses, and themeetinganyolaimfordilapidationswhich might be made by tbe landlord. Tbe plaintiff also asked for the appointment of a receiver of the rents. Before the action was commenced the tenant for life and her husband had offered to indemnify the trustees and exeontors against liability on the covenants in the leases by investing asumof money in the names of the plaintiff and defendants. Fry, J., said that it was tbe duty of tbe trustees to keep the property free from tbe risk of forfeiture for the remaindermen, and the reuts were tbe only fund by means of whioh that duty could be discharged. They had, therefore, a right to have the covenants of the leases performed out of the rents. They were Dot bound to be satisfied with an indemnity against tbe risk to whioh they would be exposed by reason ot a breaoh of their duty, but they were entitled to have the covenants in the leases specifically performed. There must be a declaration that the plaintiff was entitled to have the covenants in the leases performed by means of the rents, and for the purpose of giving effeot to the declaration, a receiver of the rents must be appointed.— Solicitors, D. JE. Lanyham; Rixons.
"will — Probate — Married Woman — Consent Of Husband.—In tbe Probate, Divorce, and Admiralty Division, on the 1st inat., judgment was given (/„ the Goods of Cooper) for a grant of probate of the will of a married woman under the following oiroumstanoes. The testatrix appointed her husband and her brother as her executors, and on the day on whioh the will was signed the husband signed the following memorandum :—" I acknowledge that tbe sums of £400 and £200, now in tbe hands of Mr. Broughton, solicitor, Birmingham, are the separate estate of my wife, to dispose of as Hh • may think fit." He never did any aot to retraot this consent, but in consequence of his ill-health he took no steps to obtain probate of the will, and he died about four mouths after his wife, and before the other exeoutor had obtained a grant of probate. Hannen, P., said that there was no doubt that the husband could have retracted his oonsent to the wife's wiil before her death, or after her death and before probate. On tbe other hand, the consent could be implied from circumstances. Here the husband had expressly assented to the wife's disposition of her property, and during tbe remainder of his life be had never sought to revoke this consent. Probate of the will wonld therefore be granted to the surviving exeoutor.—Solicitors, Kennedy, Hughes, $ Kennedy.
CASES BEFORE THE BANKRUPTCY REGISTRARS. Before Mr. Registrar Murray, acting as Chief Judge.) Feb. 16.—Ex parte Andrews, Re Allison.
A bill of sale was expressed to be made in consideration of £236 owing to, and £75 paid by, the mortgagee.
It appeared that, in fact, the £235 formed part of the consideration for a previous bill of sale, repayable by instalments, some of whioh were due at the date of the second bill of sale.
Held, that the consideration for the second bill of sale was truly stated in accordance with the requirements of section 8 of the Bills of Sale Act, 1878.
This was an application on behalf of Joseph Andrews, the trustee of the property of Win. Cumberland Allison, for a declaration that a bill of sale, dated March 30, 1880, and executed by the debtor in favour of Charles Huntley Wheatley, carrying on business as the Imperial Deposit Bank, was void against the trustee.
The deed contained the following recitals :—" Whereas the mortgagor is indebted to the mortgagee in the sum ot £235, as he doth hereby admit. And whereas the mortgagor hath applied to the mortgagee for a further advance of £75, which he, the mortgagee, hath agreed to lend upon having the same and the said debt, with £15, the agreed amount of bonus and expenses attending and incidental thereto, making in all the sum of £325 (hereinafter called the advance), secured to him in manner hereinafter expressed, and upon having the benefit of any security which he now holds, or which may hereafter be given in respect of the said advance by guarantee."
Then the deed witnessed that "in consideration of the said sum of £235 so owing as aforesaid, and of the further sum of £75 this day paid by the mortgagee to the mortgagor (the receipt whereof is hereby acknowledged)," the mortgagor . . . assigned unto the mortgagee all and singular the furniture, &c. (describing the property).
E. C. Willis, for the trustee, in support of the application, contended that tbe bill of sale was void by reason of the consideration not having been set lorth in accordance with the requirements of section 8 of the Bills of Sale Act, 1878. He cited Ex parte National Mercantile Bank, Re Haynes (28 W. B. 848, h. K. 15 Ch. D. 42); Ex parte Foreman, He Roberts
!25 Solicitors' Journal, 259) ; Ex parte Start, Re Pearey 20 W. E. 200, L. R. 13 Eq. 309).
5. T. Cooper (solicitor), lor the respondent, was not called upon.
The facts which gave rise to the execution of the bill of sale are stated in the judgment.
Mr. Registrar Murray said he had made up his mind that this was not a bill of sale which ought to be set aside upon the ground that the consideration was not properly set forth under section 8 of the Bills of Sale Act. That section had been the subject of consideration on more than one occasion by the Court of Appeal, and the substantial result of the decisions was that.the>ection should not be stretched too far, but should receive a reasonable interpretation. The question in this case was whether or not there had been an accurate description of the consideration in respect of which the bill of sale was given. The argument of Mr. Willis on this branch of the case was ingenious—namely, that the clause which stated that there was a debt of £235 existing at the date of the bill of sale was untrue; but he (the registrar) was not convinced by the argument. It was perfectly true that there might be debitum in prtesenti solvendum in futv.ro, but it was equally true that debitum in prasenti might by negotiation between the parties be resolved into debitum in prcesenti, solvendum in prcesenti; and in his view that was the proper construction to be placed upon the circumstances in the present case. Under a deed dated June 24, 1879, certain sums were advanced to the debtor, in respect of which the agreement was that he should make repayment by instalments, and there was no doubt that when a further advance was wanted in March, 1880, some future instalments were to be secured by the deed. On March 30, 1880, the debtor applied to the bank manager for a further advance, and a discussion took place, which resulted in certain papers being placed before him, and he (the registrar) had not the slightest doubt in the world that the parties fully understood one another, and there was no ground for any imputation of fraud with regard to the bank manager. It was not the case of a mere novice or child going to the bank for the first time and getting money. The debtor previously had dealings with the
bank, and had obtained advances on what outsiders called exorbitant terms, but which he was willing to accept. Finding himself in want of more money, he went to the bank with the full knowledge of the mode of dealing, and negotiated for a further advance of £75, and his Honour believed that, if mnch harder terms had been made, tho debtor would have consented to them. When matters came to a crisis, and the debtor, after going on for two or three months, found it necessary to file his petition, it occurred to him to allege that he had been defrauded and deceived, that he was not able to make out the figures upon which the bank relied, and he gave information which induced the trustee to launch the present motion. He thought it would have been more prudent if the trustee, before taking this course, had availed himself of the right of examining the parties under section 9G. The only ground practically upon which the case of the trustee could rest was that the consideration had been uutruly stated in the bill of sale. The amount for which the debtor was said to be indebted to the bank on March 30, 1880, was entered at £235, and Mr. Willis had contended that this amount was not then actually owing to the bank. But the first recital was that Allison was indebted to the bank in the sum of £235, and it went on to say that in consideration of the £235 so due and owing, the debtor executed tbe bill of sale. The argument of Mr. Willis on that point might therefore be regarded as hypercritical, because the money was then actually due and owing, although to a certain extent it was debitum inprtcssnti solvendum in futuro, as part of the amount secured by the bill of sale was to be paid by instalments not then due. The debtor, who was no novice in these matters, was given to understand by the bank manager that if he wanted more money the debt payable by instalments must be presently due, and in consideration of that a further advance of £75 v/as made. Was not that a legitimate bargain to make! and was it not right under the circumstances to state in the bill of sale that Allison was indebted to the bank in the sum of £235? He was of opinion that the recital was strictly true, and he must refuse the motion of the trustee. With regard to the moral aspect of these transactions, he said it would, no doubt, be a very good thing if men could be prevented from borrowing money upon any terms they could get it, and also if persons could be stopped from lending money at an exorbitant rate of interest, but that was beside ttie present question. The application must be dismissed, with costs. Solicitor for the trustee, R~. Aird.
(Before Mr. Registrar Murray, acting as Chief Judge.)
Feb. 23.—Re BrUcomb. A debtor presented a petition for liquidation, bat registration was refused of the resolutions passed by creditors at the first meeting on the 'gronnd of misdescription. A creditor having filed a petition for adjudication, the court refused to give the debtor leave to present a second petition for liquidation.
On the 29th of November, 1880, William G. N. Briscomb presented a petition for liquidation by arrangement or composition. He described himself as of "No. 21, Warwickstreet, Pimlico, in the county of Middlesex, and of 3, Florence-villas, Heme Hill, in the county of Surrey, tailor and outfitter." At the adjourned first meeting of creditors, held on the 5th of January, resolutions were passed accepting a composition of four shillings in the pound, and on the 17th they were confirmed. On the 17th Messrs. Loog & Co. (Limited), acting under the belief that the resolutions had not been passed by the statutory majority, and that they were open to objection on other grounds, presented a petition for adjudication against the debtor.
The application to register the resolutions and to determine the validity of the objections to the proofs came on to be heard before Mr. Registrar Murray on the 8th of February, when Loog & Co. (Limited) appeared by their solicitor, and registration of the resolutions was refused upon the ground of tbe misdescription of the debtor, he having carried on business during the past twelve months as a hatter at No. 30b, Warwick-street, Pimlico, in addition to the shop mentioned in the petition, No. 21. Such refusal proceeded upon the decision of the Lords Justices in Ex parte Jemingham (27 W. R. 157, L. R. 9 Ch. D. 466).
It therefore became unnecessary to examine the other grounds of objection, but they were not withdrawn. The bankruptcy petition had been served, and was appointed to be heard on the 28th of February.