Page images
PDF
EPUB

II.

as I believe, the courts could by general agreement and beneficial owner selling for valuable consideration, and rules alter the practice, no particular master or judge choosing only to enter into a covenant against incumor coirt can." But could a Master, even if relieved of brancos; for (see paragraph A)“ in a conveyance for the fear of appeal, decide upon different principles than valuable consideration other than a mortgage” the usual ibose which now govern him? We take it that the un. covenants for title“ by a person who is expressed to fettered Master, in deciding the lump sum, must take into convey as beneficial owner" are to “ be deemed to be account all necessary work done by the solicitor. If he included." did not solicitors would cease to undertake litigation. With regard to the execution of the conveyance, it The learned Lord Justice says “merely to pay accord. is proposed, by clause 11, that the rale laid down in ing to the work done is wrong." But what else could Viney v. Chaplin (4 Drew. 237), that a purchaser may his unfettered taxing-master reasonably take as his in general insist on having the conveyance executed in guide in fixing a lump sum ? It is clear he cannot rea- bis own presence, shall be rescinded, and that the pursonably take the amount at stake, for the amount at chaser shall be entitled, at his own cost, to have the exestake has little or nothing to do with the trouble in cution of the conveyance attested by some person ap. curred by the solicitor. An action for £100 may neces- pointed by him, who may be his solicitor. sitate infinitely more trouble than an action for Section 12 deals with covenants for production. It is £10,000. True, the Master may take in consideration proposed to substitute for these an “acknowledgment whether the work done was necessary, but so he does now. in writing” of the right to production and delivery of We believe that the Lord Justice will find that the notion copies, and this acknowledgment is to bind the docuwhich underlies his letter, that under the present sys.ments to which it relates in the possession of every person tem solicitors take unnecessary steps for the sake of having possession of them for the time being, and every heaping up costs, is not borne out by facts. There person having possession of the documents is to be may be a small section of practitioners who are open bound specifically to perform the obligations imposed by to the charge, but we confidently affirm that the great the acknowledgment, unless prevented by fire or bulk of the profession are wholly innocent of it.

inevitable accident. The obligations imposed by an acknowledgment (which only prevail in the absence of the expression of contrary intention) are, in most respects, similar to those imposed by the ordinary covenant

for production; but an acknowledgment is not to THE CONVEYANCING BILL.

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, PASSING over for the present the clauses relating to

whole, uncancelled, and undefaced, the person retaining notice and the discharge of incumbrances on sale, we

the documents must give an undertaking in writing for come to the provisions intended to shorten conveyances.

the safe custody thereof. All costs and expenses of, or Clause 9, in effect, provides that general words shall be

incidental to, the specific performance of any obligation implied in all conveyances made after the commence

conferred by an acknowledgment are to be paid by the ment of the Act, unless a contrary intention is expressed

person requesting performance. Persons claiming to be in the conveyance. The only objection we see to this is

entitled to the benefit of an acknowledgment are enabled that the clause lays a trap for an unwary practitioner.

to apply to the High Court for an order for production It is provided that a conveyance of land shall be deemed

or delivery of copies or extracts, and a person claiming to include, “ and shall by virtue of this Act operate to

to be entitled to the benefit of an undertaking for convey, with the land, all, &c." Reference will have to

safe custody of documents may apply to the court to be constantly made to the form of words which is to be

assess damages for any loss or destruction of, or injury implied, or something may pass which it is not intended

to, the documents; and in either case the costs are to be shall pass by the conveyance. Or, on the other hand,

in the discretion of the court. The practical result of something will be omitted 'which ought to be specified.

course is, that in case no contrary intention is expressed, For instance, the form of general words to be implied in

and both the acknowledgment and undertaking are conveyances of land does not include “mines and

entered into by the person retaining the deeds, the minerals,” and any conveyance made after the pass

benefit of the ordinary covenant for production is made ing of the Act will, therefore, probably contain an

to run with the land in right of which the covenant is express grant of mines and minerals. It seems

given. Having regard to the prevalence of the practice to us that the more convenient course would

of indorsing notice of the covenant for production, and bave been to include mines and minerals among the

thereby enforcing an equitable right to production, we general words, leaving it to the grantor to express a

do not see that this need be objected to. “ contrary intention” if he does not mean them to pass. We propose next week to deal with the provisions as It appears that the estate clause must still be inserted, to

ed, to leases and mortgages. although this appear to have been overlooked in the short form of “conveyance on sale" in the 3rd schedule to tbe Bill. With regard to this form, we observe that the singular flaw we pointed out last year has been

In the House of Commons, on the 24th ult., Mr. H. Fowler amended. The land is no longer conveyed to M., the

asked the Attorney-General whether, upon the Order in purchaser, “ to hold to M. in fee,” but “ to hold to and to Council for consolidating the common law divisions of the the use of M. in fee simple."

High Court of Justice comiog into operation, arrangements Clause 10 provides for the implication of the usual would be made for complying with the 30th section of the covenants for title and against incumbrances. So far as Judicature Act, 1873, which required continuous sittings for we can' make out, it is not optional with the convey. the trial of causes in London and Middlesex; and whether ing party whether he will allow these covenants to be

he could state how many judges would sit for the trial of implied, or, by expressing a contrary intention, exclude

causes in London and Middlesex after the expiration of the them. The section commences, “In a conveyance there

winter assize, and before the commencement of the Easter shall, in the several cases in this section mentioned, be

Vacation. The Attorney-General said that since receiving deemed to be included, and there shall, in those several

notice of the question he had communicated with the Lord cases, by virtue of this Act, be implied, a covenant to the

Chancellor and also with Lord Coleridge on the subject, and

that he had their authority for saying that they fully appreeffect in this section stated," &c. It is subsequently

ciated the necessity, in the interest of the public, of having provided that “a covenant implied as aforesaid may be continuous sittings for Middlesex and London, and every varied or extended by deed," but no provision appears to effort would be made to promote that object. He was be made for the case of a vendor declining to enter into not certain as to the exact number of judges who would any covenants, or (as it seems to us) for the case of a sit, but he believed that six would be sitting for some time.

CASES OF THE WEEK.

honestly what was the real legal consideration for it, and CORRESPONDENCE.

that was all that it required. The consideration need only be stated in the way in which it would be stated by an or.

dinary mortgagor and mortgagee of real estate. The Act EX PARTE MATHEWS, RE SHARPE. was not intended to impose any greater burden on the holders [To the Editor of the Solicitors' Journal.)

of bills of sale. It was intended to prevent such statements

as that £100 had been paid by the grantee to the Sir,-Though we are the solicitors for the appellant

grantor when in fact only £90 had been paid, £10 being kept in this case, we do not think there can be any im

back by the grantee for interest.-SOLICITORS, Pykes propriety in our pointing out what appears to us to be Parrott ; E. Flux & Leadbitter. the effect-we may venture to say the disastrous effectof the decision, which amounts to this, that whenever a debtor has a judgment against him available for execu Trustee Act, 1850, s. 3-VESTING ORDER-APPOINTtion, then, whatever his assets, however small, even onlyMENT OF NEW TRUSTEE-LUNATIC TRUSTEE-CESTUI QUE snfficient to pay creditors it may be only a farthing in TRUST ABSOLUTELY ENTITLED, - In a case of In re the pound or less, a resolution for liquidation of his Holland, before JAMES and COTTON, L.J., on the affairs by arrangement, and not in bankruptcy, and 26th ult., the question arose whether, when there is giving him his order of discharge, is valid, and this a sole trustee of leaseholds on behalf of a cestui que although if he was made a bankrupt he could not trust who is sui juris and absolutely beneficially entitled obtain his discharge until he paid ten shillings in the

| to the property, and the trustee becomes a lunatic, the court pound. This is undoubtedly the effect of the decision,

will, on the application of the cestui que trust, make an order and Lord Justice Lush went so far as to say that he

vesting the property in him at once. Their lordships refused would have arrived at it even if Ex parte Golding had

to do this, and held that the proper course was to have a not been previously decided. Lord Justice Cotton,

new trustee appointed, and to apply for an order vesting the

property in him, otherwise, as COTTON, L.J., said, the court however, came to the conclusion with reluctance, saying I would be administering the trust—a course which was conthat he could not distingu ish between the present case trary to the practice under the Trustee Act.-SOLICITORS, and Bxc parte Golding. We may therefore assume that | Norris, Allens, & Carter. be' 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 LUNACY-DEATH OF LUNATIO–DISPUTE AS TO HEIRSHIP a new Bankruptcy Act was at once passed.

-ACTION AT LAW-INSPECTION AND PRODUCTION OF Deeds SPYER & Son. DEPOSITED IN LUNACY OFFICE. In a case of In re Smyth,

before JAMES and COTTON, L.JJ., on the 26th ult., a question arose as 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

lunatic had died possessed. He had died intestate, and BILL OF SALE-STATEMENT OF CONSIDERATION-BILLS without issue, or any Dearer relation that cousins. The OF SALE Act, 1878, s. 8.-In a case of Ex parte Winter, defendant in the action was the lunatic's heir-at-law, who before tbe Court of Appeal on the 24th ult., a question arose I had been found to be such in the lunacy proceedings. The as to the sufficiency of the statement of the consideration in plaintiff alleged that he was the lunatic's heir ex parte a bill of sale. The bill of sale contained a recital that the maternd, and that the property in question had descended to Dortgagor was indebted to the mortgagee in the sum of the lunatic from his mother. The defendent petitioned in £1,444 14s. 3d., for money lent, and that, the mortgagor the lunacy that his solicitors might be at liberty to inspect the being unable to pay the same, he had, in order to deposited deeds, and that they might be produced at the trial induce the mortgagee not to institute proceedings against of the action. The application was resisted by the plaintiff, him, agreed to execute the deed, and then, “in pursuance on whose behalf an affidavit was made by his solicitor that of such agreement, and in consideration of the premises,” | the lunatic had inherited the property in question from his the mortgagor covenanted to pay the debt on demand in mother, and that the plaintiff was the heir-at-law of the writing. And, "for the consideration aforesaid," the mort- mother, and as such entitled to the property, and to the gagor assigned to the mortgagee his furniture and other deeds in question, and that the defendant was not in any way cbattels as security for the debt. It was not disputed that related to the mother. This evidence was not contradicted. the £1,444 14s. 3d. was really advanced by the mortgagor to Their lordships, bowever, held that the prima facie right of the mortgagee, but the grantee on examination stated that the defendant as heir-at-law to inspection of the deeds was the recital in the bill of sale that the grantor bad agreed to not displaced. He could

not displaced. He could not be said to be without any execute it in order to induce the grantee not to institute pro- | interest whatever in the question to be tried, for the deeds ceedings against him was not true, inasmuch as he bad might, in some way, negative the plaintiff's title. The order never threatened to take proceedings against the grantor. asked for was accordingly made. - SOLICITORS, Chester, It appeared, however, that the bill of sale was prepared by Mayhew, & Co.; Peacock & Goddard. the grantor's solicitor from his instructions. The judge of the Newcastle County Court beld that the consideration had not been truly stated in the deed, and declared the deed ACTION OF DECEIT-FALSE REPRESENTATIONS-DIRECvoid as against the trustee in the liquidation of the grantor. TORS AND PROMOTERS OF COMPANY-CONTRACT TO TAKE Bacon, O.J., reversed this decision, and his order was SHARES-PROSPECTUS.-In a case of Arkwright v. Newbold, affirmed by the Court of Appeal (JESSEL, M.R., and JAMES before the Court of Appeal, on the 28th ult., the distinction and Lust, L.JJ.). JESSEL, M.R., said that he was at a loss between an action of deceit and an action to set aside a conto see any inaccuracy whatever in the statement of the con tract was very clearly pointed out by the court. The action sideration, though he desired to add that a small inaccuracy was brought by a shareholder in a company, which had proved in the statement would not avoid a bond fide bill of sale unsuccessful, against the former directors and solicitors, who toder the Act. Substantial accuracy was all that was required. were the promoters of the company, and two of whom were The Act was not intended to defraud the bolders of bills the vendors to the company of a property and business, to of sale, but to protect the creditors of the grantor from acquire which the company was formed, to recover damages, frauds. In the present case the deed was prepared by the on the ground that the plaintiff had been induced 10 apply grantor, and was presented by him to the grantee as his for and take shares in the company by misrepresentations constatement of that which was passing through his own mind. tained in a prospectus which had been issued by the defendThere could be no doubt that the recital was true, and that ants. The alleged misrepresentation was contained in the the grantor executed the deed to prevent proceedings being following passage :-" The remuneration of the directors will taken against him. There was no statement that proceed be fixed by the shareholders, and it is proposed that they ings had been tbreatened by the grantee, but that was the shonld be paid only by a commission on the profits, no promogrentor's motive for executing the deed. JAMES, L.J., said tion money whatever being paid to them by the company, that what the Act requires is this : that the deed should state and all formation experses being paid by the vendors.

The contract for the purcbase of the property by the com- that the mortgage deed of the property should be duly pany, which was stated in the prospectus, fixed the purchase- stamped at the expense of the vendor, though the mortgagoe money at $32,000, of which £15,000 was to be paid in 3,000 was willing to join in the assignment to the purchaser. The shares of the nominal value of £5 each, which were to be mortgage deed had been stamped only with a 103. deed stamp, allotted to the vendors as fully paid up. After the agree- no ad valorem duty having been paid. Jessel, M.R., held ment for purchase had been concluded, and after the issue of (28 W.R. 822, L. R. 14 Ch. D. 822) that the purchaser was the prospectus, the vendors transferred to the other defend entitled to have the mortgage deed duly stamped with the ants 800 of their fully paid-up shares, representing a nominal proper ad valorem duty at the expense of the vendor before value of £4,000. Fry, J., beld (28 W. R. 828) that, though completion of the purchase, on the ground that the deed section 38 of the Companies Act, 1867, did not apply, might be the purchaser's protection against a mesne incombecause it was not proved that the transfer of the 800 shares brance by the vendor. The purchaser would get the legal was made in pursuance of any binding contract entered into estate without notice, but he could not prove that he bad before the conclusion of the agreement for purchase, though got that estate unless he could produce the mortgage deed there might have been sometbing in the nature of an properly 'stamped. Tbis decision was affirmed by the understanding, yet the statement in the prospectus was, Court of Appeal (JAMES, COTTON, and LUSH, L.JJ.) upon the under the circumstances, fraudulent in fact, and that the same ground.-SOLICITORS, Hunter, Gwatkin, $ Haynes; plaintiff was entitled to the relief which he claimed. This Loxley & Morley. decision was reversed by the Court of Appeal (JAMES, COTTON, and Luen, L.JJ.), who were of opinion that the above statement in the prospectus was strictly accurate. PRACTICE-AMEYDING WRIT AND STATEMENT OF CLAIMJAMES, L.J., thought that Fry, J., had confused two different SPECIAL LEAVE-AFFIDAVIT-CROSS-EXAMINATION ON AFFIkinds of wrong and two different kinds of remedy; he had DAVIT-Cost8.-In a case of Conybeare v. Lewis, before the confused tbe right to bring an action of deceit with the right Master of the Rolls on the 25th ult., a motion was made for to set aside a contract. To support an action of deceit the directions under the following circumstances. It appeared plaintiff must prove that he had been deceived by a false that the defendants had delivered their defence in July, statement made by the defendant. The omission to state 1880, and tbe plaintiff in January last took out a summons that which qualified what was stated would be equivalent to for leave to amend his writ and statement of claim. No a false statement; but mere silence, though it might give a reply had been delivered. In support of the summons the right to set aside a contract, could not be the ground of an plaintiff filed a formal affidavit stating that circumstances action of deceit. JAMES, L.J., and COTTON, L.J., also intihad arisen since the issue of the writ necessitating the amendmated an opinion, ihough it was not necessary for the ment. The defendants filed affidavits in opposition to the decision of the case, that, if a statement was true at the summons and tbe hearing was adjourned to enable affidavits time when it was made, but became untrue before the com- 1 to be filed in reply. On the 10th of February the plaintiff pletion of a contract which was induced by it, the mere was served with notice of cross-examination upon his affiomission to communicate the altered state of circumstances davit before the examiner, and on the 16th he attended and would not support an action of deceit against the person who was cross-examined for an hour before the examiner, tho simply maintained silence.-SOLICITORS, Clarke, Wood. allegation in the suit of the defendants being that the plaincock, & Ryland; Phelps, Sidgwick, & Biddle.

tiff 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 INCUMBENTS' RESIGNATION Act, 1871, s. 10-ARREARS February, and the further cross-examination was adjourned OF PENSION-ACTION BY FORMER INCUMBENT AGAINST to the 14th inst. The plaintiff now moved for direction that PRESENT INCUMBENT-SET-OFF.-In a case of Gathercole v. be might amend his writ without any further cross-examinaSmith, before the Court of Appeal on the 1st, inst., a ques. tion. JessEL, M.R., was of opinion that the course tion arose upon the construction of section 10 of the above taken by the defendanig was not justified under the circumAct, which provides that the pension allowed to an incum. stances. An application had been made for leave to amend bent who retires under the provisions of the Act “sball be a the writ and statement of claim, and in respect of the latter charge upon the revenues of the benefice, and shall be amendment no leave was necessary. It was not denied by recoverable as a debt at law or in equity from the incumbent the defendants that the new matters sought to be introduced of the said benefice by the retired clerk, his executors, were germane to the action, and in such a case it was not the administrators, or assigns, but such pension shall not be practice in his chambers, on an application for leave to transferable at law or in equity." The action was brought by amend the writ, to require any affidavit where there was no the incumbent of a benefice, who had retired under the pro dispute that the amendments were germane to the action. visions of the Act, subject to the payment of a pension balf An affidavit was, however, made, and in his opinion it was yearly, against the present incumbent for the recovery of improper to have cross-examined the plaintiff upon that three half-years' arrears of the pension. The defendant affidavit, and an abuse of the practice of the court, and he claimed to get off against the arrears a judgment against should certainly make the defendants pay the costs of the the plaintiff, a mortgage of the advowson by the plaintiff, cross-examination, unless it should turn out hereafter that and a sequestration of the benefice of which the defendant had | there was any justification for the course adopted by them. taken assignments. Jessel, M.R. (contrary, it was said, to | He should give the plaintiff leave to amend his writ and the decision of Lord Coleridge, C.J., in another case), bela (24 statement of claim, and the costs of the motion and of the SOLICITORS' JOURNAL, 630), that the effect of section 10 was summons would be costs in the action.-SOLICITORS, Hores & to create an inalienable provision for the retired incumbent, Pattisson ; Trinders & Curtis-Hayward; Munns f Longdon. and that no right of set-off was any answer to the plaintiff's claim. 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

COVENANT-INJUNCTION-ACQUIESCENCE-WAIVER. -ID must be held to include an involuntary disposition by act of

a case of Kelsey v. Dodd, before the Master of the Rolls og law-e.g., a bankruptcy-so as to prevent the pension from

the 28th ult., a question arose whether & covenant not to vesting in the trustee in bankruptcy of the retired incum.

carry on the business of a beershop keeper could be enforced bent. The object of the Act was to make a provision for the

under the following circumstances. The covenant was conmaintenance of clergymen whose age or infirmities rendered

tained in a deed of covenant, by which certain land was sold it desirable for them to resign their benefices, and by the

for the purpose of being used for building purposes. The words " forbidding transfer" it was intended to prevent the

piece of land subject to the covenant was about six acres, and retired incumbent from being deprived of that maintenance

according to the evidence there had been numerous beershops directly or indirectly.-SCLICITORS, Venn & Woodcock;

upon it for some years. The plaintiff owned a public-house, Parkers,

and complained that the defendant's beershop interfered with his business. It appeared that the defendant had obtained a

licence for his beershop, and in Augnst, 1878, the plaintiff VENDOR AND PURCHASER-STAMP DUTY-MORTGAGE was aware of this, and in July, 1879, gave the defendant DEED—AD VALOREM DUTY-STAMP ACT, 1870, S. 17. notice, requiring him to discontinue using his house as & In a case of Whiting to Loomes, before the Court of Appeal | beershop. The plaintiff, however, took no further step on the 1st inst., a question arose as to the right of a l until August, 1880, when he issped his writ. It also appeared purcbaser of leasehold property from a mortgagor to require that oumerous other beershops since the year 1873 bad been established on the property. Jessel, M.R., was of opinion his claim in a fresh action. But if the views of Cockburn, that under the circumstances the covenant relating to the C.J., Brett, L.J., and Manisty, J., were right, it would seeni beershop in question had been abandoned or so waived as to at least doubtful whether that decision of the Master of the preclude the plaintiff from now enforcing the same. Rolls was correct. And his lordship thought it would result SOLICITORS, Collyer-Bristow, Withers, « Russell ; Hare & in great inconvenience, for, if the defendant had brought a Fell.

separate action, he could go on with it, whether the plaintiff went on with his action or pot ; whereas, if the defendant pro

ceeded by way of counter-claim, his right might be defeated, COUNTER-CLAIM-EXTENT OF RELIEF-CAUSE OF ACTION

after all the expense had been incurred, by the plaintiff's ARISING AFTER DATE OF WRIT IN ORIGINAL ACTION dropping bis independent action. His lordship hoped that the JUDICATURE ACT, 1873, s. 24, SUB-SECTION 3-ORD. 19, R.

question would soon be decided by the Court of Appeal ; but 3-ORDER 20.-In a case of Beddall v. Maitland, before

meanwhile, the matter being one of great and general interest' Fry, J., on the 25th ult., an important question arose as to he thought it right to express his own view.-SOLICITORS' the extent of the relief which can be given on a counter- | F. C. Tudor ; E. Johnson. claim. The defendant had delivered a counter.claim, anu by it he claimed damages in respect of an injury which had occurred between the date of the writ and the TENANT FOR LIFE AND REMAINDERMAN-LEASEHOLDS date of the delivery of the counter-claim. In opposition to 1-REPAIRS—TRUSTEE-RECEIVER.-I& case of In re this claim reliance was placed on the decision of Jessel, M.R., Fowler, before Fry, J., on the 26th ult., & question in The Original Hartlepool Collieries Company v. Gibb arose as to the right of a trustee of leaseholds, be(L. R. 5 Ch. D. 713), that damages cannot be given on queathed op trust for a tepant for life and remaindermen, e counter-claim in respect of anything which happened to compel the application of the rente in the repair of after the issue of the writ in the action. FRY, J., , the properiy. Leasehold houses were bequeathed by a differed from this decision, and allowed the defendant to go ! testator to å married woman and two other porsons (the into evidence of the alleged injury subsequent to the date of three trustees being also the executors) on trust for the the writ. He said that the point was one of very great im- married woman for her separate use, without power of portance, as regulating the procedure under the Judicature anticipation, for her life, and after her death on trust for Act, and he had great hesitation in differing from the Master her children. She was allowed to receive tbe rents. The of the Rolls. But he had formed a clear opinion, and felt houses were not kept in a proper state of repair, and the bound to express i:. The words of sab-section 3 of section action was brought by one of the trustees against the 24 of the Judicature Act of 1873 were of the utmost married woman and her husband and the third trustee, generality, and appeared to him to give to the defendant to an

claiming the making of some provision for the repair of action an independent right to commence an independent

the houses, and the meeting any claim for dilapidations which action against tbe plaintiff by means of what was in the rules

might be made by the landlord. The plaintiff also asked for called a counter-claim, and his lordship could find nothing

the appointment of a receiver of the rents. Before the in the letter or in the spirit of the Act to confine the relief which was to be given on the counter-claim to some cause of

| action was commenced the tenant for life and her husband

had offered to indemnify the trustees and executors against action wbich was vested in the defendant at the commence

liability on the covenants in the leases by investing a gamof ment of the original action. And he could find nothing in

money in the names of the plaintiff and defendants. Fry, Tule 3 of order 19, or anywhere else in the rules, to limit the

J., said that it was the daty of the trustees to keep the generality of the words of the Act. Rule 3 of order 19 used

property free from the risk of förseiture for the remainder. the words, “ whether such set-off or counter-claim sound in

men, and the rents were the ocly fund by means of which damages or not," and he thought it was evident from tbem

that duty could be discharged. They had, therefore, a that tbere was no intention of confining the counter-claim to & claim for damages or a claim of the same nature as that

right to have the covenants of the leages performed out of in the original action.

the rents. They were not bound to be satisfied with an If the defendant might set up a claim of his own it did not necessarily mean that it must be

indemnity against the risk to which they would be exposed & claim ejusdem generis with that of the plaintiff. The

by reason of a breach of their duty, but they were entitled plaintiff's claim might be for damages; the defendant's

to have the covenants in the leases specifically performed. Light be for an injanction or some equitable relief not sound

There must be a declaration that the plaintiff was entitled ing in damages. It was not, therefore, confined to set-off

to have the covenants in the leases performed by means of or to something which would counteract the relief claimed

the rents, and for the purpose of giving effeot to the by the plaintiff. It was true that by order 20 express pro

declaration, a receiver of the rents must be appointed. vision was made for pleading any ground of defence which

SOLICITORS, D, E, Langham; Rixons. had arisen after action brought, and from that the Master of the Rolls had inferred that, in the absence of any such prowision as to a counter-claim, it must be taken to be limited

WILL - PROBATE – MARRIED WOMAN - CONSENT OF to causes of action which had arisen before the commence

HUSBAND.-In the Probate, Divorce, and Admiralty ment of the original action. His lordship, however,

Division, on the let inst., judgment was given (In the wouid rather draw the inference that such a provision was }

Goods of Cooper) for a grant of probate of the will of a

The unnecessary as to a counter-claim. because the right had | married woman under the following circumstances. already been expressly given by the Act. He thought the testatrix appointed her husband and her brother as ber execuview of the Master of the Rolls was open to this serious | tors, and on the day on which the will was signed the objection, that if a defendant had two causes of action

| husband signed the following memorandum :-“I acknow. against the plaintiff, one of which arose before the issue of

| ledge that the sams of £400 and £200, now in the hands the writ in the original action, and the other which arose of Mr. Broughton, solicitor, Birmingham, are the separate after, be must split his demand. He might ventilate the estato of my wile, to dispose of as she may think fit." one cause of action by means of a counter-claim, while, in He never did any act to retract this consent, but in con. respect of the other he must issue an independent writ. But sequence of his ill-health he took no steps to obtain probate the spirit of the Judicature Acts was to prevent multiplicity of the will, and he died about fou

of the will, and he died about four months after his wife, of actions, and especially to prevent multiplicity of procedure, and before the other executor had obtained a grant of and to enable all questions between a plaintiff and a de | probate. HANNEN, P., said that there was no doubt fendant to be decided in one proceeding. His lordship was that the husband could have retracted his consent to Very mach confirmed in his view by what was said by the wife's wiil before her death, or after her death and Cockburn, C.J., and Manisty, J., in Stooke v. Taylor (29 before probate. On the other hand, the consent could be W. R. 49, L. R. 5 Q. B. D. 569), and by Brett, L.J., in Winter. implied from circumstances. Here the busband had ex. field v. Bradnum (26 W. R. 353, L. R. 3, Q. B. D. 324), which pressly assented to the wife's disposition of her property, tended to show that a counter-claim is a wholly independent and during the remainder of his life he had never action, though for convenience of procedure ihe claim and sought to revoke this consent. Probate of the will would counter-claim are combined in one action. No doubt in therefore be gracted to the surviving executor.-SOLICITORS, Varasseur v, Krupp (L. R. 15 Ch. D. 474) the Master of Kennedy, Hughes, & Kennedy. the Rolls held that a counter-claim is part of the original setion, and that, when the original action is discontinued, the counter-claim is gone too, and the defendant must assert

bank, and bad obtained advances on what ou'siders called CASES BEFORE THE BANKRUPTCY. exorbitant terms, but which he was willing to accept. REGISTRARS.

Finding himself in want of more money, he went to the Before Mr. REGISTRAR MURRAY, acting as Chief Judge.)

bank with the full knowledge of the mode of dealing.. Feb. 16.--Ex parte Andrews, Re Allison.

and negotiated for a further advance of £75, and his

Honour believed that, if much harder terms had been made. A bill of sale was expressed to be made in consideration of

the debtor would have consented to them. When matters $235 owing to, and $75 paid by, the mortgagee.

came to a crisis, and the debtor, after goiog on for two or It appeared that, in fact, the £235 formed part of the con

three months, found it necessary to file his petition, it sideration for a previous bill of sale, repayable by instalments, some of which were due at the date of the second bill of sale.

occurred to him to allege that be had been defrauded and Held, that the consideration for the second bill of sale was

deceived, that he was not able to make out the figures upon truly stated in accordance with the requirements of section 8 of which the bank relied, and he gave information which in. the Bills of Sale Act, 1878.

duced the trustee to launch the present motion. He thought This was an anplication on behalf of Joseph Andrews the lit would have been more prodent if the trustee, before taking trustee of the property of Wm. Cumberland Allison, for a

this course, had availed himself of the right of examining declaration that a bill of sale, dated March 30, 1880, and

the parties under section 96. The only ground practically executed by the debtor in favour of Charles Huntley | upon which the case of the trustee could rest was that the Wheatley, carrying on business as the Imperial Deposit

consideration had been untruly stated in the bill of sale. Bank, was void against the trustee.

The amount for which the debtor was said to be indebted to The deed contained the following recitals :-" Whereas

the bank on Maroh 30, 1880, was entered at £235, and Mr. the mortgagor is indebted to the mortgagee in the sum of

Willis had contended that this amount was not then actually £235, as he doth hereby admit. And whereas the mortgagorowing to the bank. But the first recital was that Allison bath applied to the mortgagee for a further advance of £75,

was indebted to the bank in the sum of £235, and it went which he, tbe mortgagee, hath agreed to lend upon having on to say that in consideration of the £235 so due and owing, the same and the said debt, with £15, the agreed amount of

the debtor executed the bill of sale. The argument of Mr. bonus and expenses attending and incidental thereto, making Willis on that point might therefore be regarded as hyperin all the sum of £325 (hereinafter called the advance), se

critical, because the money was then actually due and owing, cured to bim in manner hereinafter expressed, and upon although to a certain extent it was debitum in præsenti soldenhaving the benefit of any security which he now holds, or

dum in futuro, as part of the amount secured by the bill of which may bereafter be given in respect of the said advance

sale was to be paid by instalments not then due. The by guarantee."

debtor, who was no novice in these matters, was given to Then the deed witnessed that “in consideration of the said understand by the bank manager that if he wanted more sum of £235 so owing as aforesaid, and of the further sum of

money the debt payable by instalments must be presently £75 this day paid by the mortgagee to the mortgagor (the

due, and in consideration of that a further advance of $75 receipt whereof is hereby acknowledged),” the mortgagor

was made. Was not that a legitimate bargain to make ? and ... assigned unto the mortgagee all and singular the

was it not right under the circumstances to state in the bill furniture, &c. (describing the property).

of sale that Allison was indebted to the bank in the sum of E.C. Willis, for the trustee, in support of the application,

£235 ? He was of opinion that the recital was strictly true, contended that the bill of sale was void by reason of the con.

and he must refuse the motion of the trustee. With regard sideration not baving been set forth in accordance with the

to the moral aspect of these transactions, he said it would, requirements of section 8 of the Bills of Sale Act, 1878. He

no doubt, be a very good thing if men could be prevented cited Ex parte National Mercantile Bank, Re Haynes (28 W.

from borrowing money apon any terms they could get it, and R. 848, L. R. 15 Ch. D. 42); Ex parte Foreman, Re Roberts

also if persons could be stopped from lending money at an ex(25 SOLICITORS' JOURNAL, 259) ; Ex parte Sturt, Re Pearcy

orbitant rate of interest, but that was beside the present (20 W. R. 200, L. R. 13 Eq. 309).

question. The application must be dismissed, with costs. 8. T. Cooper (solicitor), for the respondent, was not called

Solicitor for the trustee, H. Aird. upon.

The facts which gave rise to the execation of the bill of sale are stated in the judgment.

(Before Mr. REGISTRAR MURRAY, acting as Chief Judge.) Mr. REGISTRAR MURRAY said he had made up his mind

Feb. 23.--Re Briscomb. that this was not a bill of sale which ought to be set aside A debtor presented a petition for liquidation, but registration upon the ground that the consideration was not properly set was refused of the resolutions passed by creditors at the first forth under section 8 of the Bills of Sale Act. That section meeting on the ground of misdescription. A creditor having had been the subject of consideration on more than one

filed a petition for adjudication, the court refused to give the occasion by the Court of Appeal, and the scbstantial result

debtor leave to present a second petition for liquidation. of the decisions was that the section should not be stretched too On the 29th of November, 1880, William G. N. Briscomb far, but should receive a reasonable interpretation. The ques presented a petition for liquidation by arrangement or comtion in this case was whether or not there had been an accurate position. He described himself as of "No. 21, Warwick description of the consideration in respect of which the bill street, Pimlico, in the county of Middlesex, and of 3, of sale was given. The argument of Mr. Willis on this Florence-villas, Herne Hill, in the county of Surrey, tailor branch of the case was ingenious-namely, that the clause and outfitter.” At the adjourned first meeting of creditors, which stated that there was a debt of £235 existing at the held on the 5th of January, resolutions were passed acceptdate of the bill of sale was untrue ; but he (the registrar) | ing a composition of four shillings in the pound, and on the was not convinced by the argument. It was perfectly true 17th they were confirmed. On the 17th Messrs. Loog & Co. that there might be debitum in præsenti solvendum in futuro, (Limited), acting under the belief that the resolutions had but it was equally true that debitum in presenti might by not been passed by the statutory majority, and that they negotiation between the parties be resolved into debitum in were open to objection on other grounds, presented a petition præsenti, solvendum in prcesenti ; and in his view that was the for adjudication against the debtor. proper construction to be placed upon the circumstances in | The application to register the resolutions and to determine the present case. Under a deed dated June 24, 1879, certain the validity of the objections to the proofs came on to be sums were advanced to the debtor, in respect of which the heard before Mr. Registrar Murray on the 8th of February, agreement was that he should make repayment by instal- when Loog & Co. (Limited) appeared by their solicitor, and ments, and there was no doubt that when a further advance registration of the resolutions was refused upon the ground was wanted in March, 1880, some future instalments were to of the misdescription of the debtor, he having carried on be secured by the deed. On March 30, 1880, the debtor business during the past twelve months as & hatter at No. applied to the bank manager for a further advance, and a 308, Warwick-street, Pimlico, in addition to the shop mendiscussion took place, which resulted in certain papers being tioned in the petition, No. 21. Such refusal proceeded upon placed before him, and he (the registrar) had not the slight the decision of the Lords Justices in Ex parte Jerningham est doubt in tbe world that the parties fully understood one (27 W. R. 157, L, R. 9 Ch. D. 466). another, and there was no ground for any imputation of fraud It therefore became unnecessary to examine the other with regard to the bank manager. It was not the case of a grounds of objection, but they were not withdrawn. The mere novice or child going to the bank for the first time and bankruptcy petition had been served, and was appointed to getting money. The debtor previously had dealings with the be heard on the 28th of February.

« PreviousContinue »