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LONDON, MARCH 12, 1881.
Combe and Wainwright, ended on Saturday, when Mr. Justice DENMAN reserved judgment, and we accordingly postpone our report. The evidence is stated to have occupied twenty-five days, and the trial lasted in all thirty-one days. ..
CURRENT TOPICS ....
.................. 347 BALLOT ACT AMENDMENT.....
319 TIE CONVEYANCING BILL .........
350 IT WAS STATED by Mr. Shaw-LeFevre in the House of REVIEWS ........
Commons this week that the new Courts of Justice will CORRESPONDENCE ......................................... 351 NEW ORDERS.............................................. 352 provide accommodation for twenty-one separate and CASES OF THE WEEK :
distinct courts. Under the original plan, with reference to Ex parte The Baroness Willoughby D'Eresby................ 353 Fisher F. Hull, Barnsley, and West Riding Junction Railway
which the contract with the builders was made, only and Dock Company ....................
353 eighteen courts were provided for, and as that plan has, Long v. Ovenden
until the present time, we believe, been strictly carried Day y. Finch ............................................... 35+ Nevlahon V. Field
out in that respect, it will be interesting to know in .......... ..........**** Hastirgs v. Hurley .........
what part of the building, or on what part of the Bergmann v. Macmillan ..........
..... 354 Hamilton v. Chaine, Morgan, Claimant .....
surplus ground, the three extra courts spoken of by CASES BEFORE THE BANKRUPTCY REGISTRARS:
the First Commissioner are to be provided. Re Stanley Harris . SOCIETIES.....
355 LAW STUDEXIS' JOURNAL...................................... 356 OBITUARY..................................................... 357
THE LAMENTED DEATH of Sir H. M. JACKSON after PENDING LEGISLATION ..... LEGAL APPOINTMENTS ....
being appointed a judge, but before being sworn in, COMPANIES ....
358 is probably without parallel in our judicial history. CREDITORS' CLAIMS ...
The nearest (but a very different) case is that of Lord COURT PAPERS ...
360 LEGISLATION OF THE WEEK.................................... 360
HARDWICKE's son, the Hon. CHARLES YORKE, who, in LONDON GAZETTES, &c., &c....
..................... 361 1770, after great hesitation, accepted the Great Seal
in the Duke of GRAFTON's Ministry. On the 17th of
January he was sworn in as a member of the Privy CASES REPORTED IN THE WEEKLY REPORTER.
Council and as Lord Chancellor, and received the Atlantic Mutual Marine Insurance Company v. Huth (App.).... 387 Cape Breton Company (Limited) v. Fenn and others (App.).... 386
seals, but he died three days afterwards, before taking Chatterby, Ex parte. In re Wix (Bkcy.) ........
400 his seat in the Court of Chancery, and before his patent Conybeare v. Lewis (Ch.Div. M.R.)..
of peerage as Lord MORDEN had passed the Great Seal. Copp, In re. Ex parte Drew (App.) ..
390 Eaton v. Basker and others (Ex. Div.) .....................
393 “Fanchon," The (Adm. Div.) ........ Farina's Trade Marks, In re (Ch Div. M.R.) ...
391 Foster, In re. Merrill v. Morton (Ch.Div. V.0
394 THE USUAL CONSEQUENCE of a cause list being built up Frazer & Co. v. Cuthbertson (Q.B. Div.).....
during a season of delayed hearing, has occurred with Harrison v. Leutnor (Ch. Div. M.R.)....
393 Maclaren & Walker, Ex parte. In re MacColla (App.) ... 389 reference to the Middlesex list. Under such circumRobinson v. Pickering (App.).......
stances a cause list swells rapidly, but as Mr. Justice Ward, Sturt, & Sharp's Trade-Marks, In re (Ch.Div. V.C.H.) .. 395
LOPES recently remarked, it falls to pieces as soon as it is attacked. Actions defended simply for the purpose of
delay are kept in the list until the very eve of trial, and CURRENT TOPICS.
it is only the prospect of facing a judge and jury that brings the litigant without a case to a settlement which
ought to have been made long before. IT IS UNDERSTOOD that the action relating to the legality of the dismissal of the late Remembrancer of the City of London, will come for decision before the Master
IT WILL BE OBSERVED from the reprint of the Solicitors of the Rolls.
Remuneration Bill, as brought into the House of Com• inops, which will be found elsewhere, that an amendment
which we have persistently urged ever since the Bill THE BENCHÈRS of the Inner Temple have acceded to
first saw the light, has now at last been adopted. The the resolution recently passed by the other three Inns
President of the Incorporated Law Society for the time of Court relative to the call of solicitors to the bar ; and
being has been added to the body who are to make the the regulations will now be altered so as to enable
rules for regulating the remuneration of solicitors. It solicitors to be called after the lapse of one year only. is now provided that, “In England, the Lord Chancellor,
the Lord Chief Justice of England, the Master of the
Rolls, and the President for the time being of the InAN ODD MISTAKE occasioned some excitement in Lin - corporated Law Society, or any three of them, the Lord coln's-inn on Wednesday. In the daily cause-paper of
wednesday. In the daily cause-paper of Chancellor being one,” shall make the general order the Chancery Division, issued on that evening, there as to remuneration. And it is also provided that, ono vas a list of causes stated as to be heard before month at least before any such general order is made, Vice-Chancellor Malins on the following day. The list a copy of the regulations and provisions proposed to in reality belonged to Vice-Chancellor Hall, and a be embodied therein shall be communicated in writing revised edition of the paper was issued next morning. to the Council of the Incorporated Law Society, “who
shall be at liberty to submit such observations and
suggestions in writing as they may think fit to offer PROBABLY THE MOST LENGTHY trial ever known in an thereon," and the rule-making body are to take into action for negligence against solicitors, The Berlin | consideration these observations and suggestions, and, Phosphate Sewage and Manure Company (Limited) v. | after duly considering the same, are to make the order.
INSIDE THE COVER of the new edition of the Chronologi. Acts, in pari materia, but not relating to courts ecclecal Table and Index of the Statutes, wbich has just been siastical, by 1 Eliz. c. 1, from the preamble to which we issued to the subscribers to the Law Reports for 1881, learn that the whole eight “ were made and established there is a label apparently designed to commemorate the as well for the utter extinguishment and putting away liberality of the Council of Law Reporting. It is stated of all usurped and foreign powers and authorities that the volume is “presented” by the council to the out of this realm, as also for the restoring and subscribers. This is a mistake. The subscribers present uniting to the Imperial Crown of this realm the the book to themselves, and are forced to do so by the ancient jurisdictions and authorities, superiorities, council. It is worth while to turn to the statement and pre-eminencies to the same of right belong made by Lord FREDERICK CAVENDISH in the House of ing and appertaining.” Turning to the two Acts, Commons in answer to Mr. MACDONALD on the 18th of the preamble to 24 Hen. 8, c. 12, recites that “ by dyvers February last. From that statement it appears that the sundrie olde autentike histories and cronicles, it is mani. council made a bargain with the Government to take festly declared and expressed that this realme of Eng5,000 copies of the Index at 58. a copy. The Govern- lond is an impire, and so hathe been accepted in the ment, no doubt, showed some generosity to the council. worlde, govned by ovr suprme heede and King .... Mr. MACDONALD, speaking on behalf of the public, would unto whom a body politike..devided in termes probably have called it partiality. At all events 108., and by names of spualties and temporaltie, ben bounden the price at which the book is offered to the public, is and owen to bere nexte to God a naturall and. “considerably less than the cost price of the paper and humble obedience.” The Act then prescribes that printing.” But in sume unexplained way it appears that in lieu of the appeal to Rome there shall be an appeal the cost is covered by disposing of 5,000 copies at 58. a from the archdeacons to the bishops, and from the copy. However this may be, the council spent £1,250 bishops to the archbishops, from whom there is to be no
appeal except in matters touching the King, in which law reports have been diverted in order to give the sub matters there appears to be an appeal to the scribers what they have not asked for.
Upper House of Convocation. The second, and better known, statute, 25 Hen. 8, c. 19, is the “ Acte for the
submission of the Clergie to the Kynges Majestie." SOME DIFFICULT QUESTIONS are likely to arise as to
This Act provides that for lack of justice at or in any of the patronage hitherto exercised by the Chief Justice
the courts of the archbishops of this realm, or in any of of the Common Pleas and the Chief Baron, and
the King's dominions, it shall be lawful to the parties we gather from Mr. GLADSTONE's statement in the House
aggrieved to appeal to the King's Majesty " in the of Commons that legislation on the subject is contem.
Kynges Court of Chauncie, and that upon every suche plated. The Supreme Court of Judicature (Officers)
appele a comission shal be directed under the Greate Seale Act, 1879, provides, by section 9, that " the right of
to such psones as shall be named by the Kynges Highnes filling any vacancy in the office of Master of the Supreme | lyke as in case of appele frome the Admyrall Courte, to Court or in any clerkship in the Central Office shall ” here and dyffynytyvly determyne such appele.” It will (except in the cases of the Queen's Coroner and Master
be noticed that these commissioners, afterwards called of the Crown Office, the patronage of which is reserved
the “ High Court of Delegates," may have been few or to the Lord Chief Justice of England) “be vested in the
many, lay or spiritual persons, at the absolute pleasure of Lord Chief Justice of England, the Master of the Rolls, the Crown; while at the same time it was from the Crown, the Lord Chief Justice of the Common Pleas, and the Lord
not from the Act of Parliament, that the individual comChief Baron of the Exchequer, in rotation. and in such missioners, as distinguished from the commission as a body, order as they by agreement among themselves determine,"
derived their appointments. The Act, 2 & 3 Will. 4, c. 92, while, subject as aforesaid, the right of filling any vacancy
although it repealed so much of the Act 25 Hen 8, c. 19, in, and making any new appointment in, the Central Office as empowered the Sovereign “to grant a commission, is vested in the Lord Chancellor, with the approval of the
authorizing the persons named therein to hear and deter. Treasury. The extent of Lord COLERIDGE's patronage de
mine such [ecclesiastical] appeals," and transferred the pends upon the construction of this section. It may be
powers of the High Court of Delegates to the Sovereign urged that, since two of the three Chief Justiceships have in Council, did not effect so great a change as may have ceased to exist, the patronage will be now divided been generally supposed. Privy Councillors have always equally between the Lord Chief Justice of England and been named at the absolute pleasure of the Sovereign, and the Master of the Rolls. On the other hand, it may be no particular Privy Councillor had ever any exclusive right contended that Lord COLERIDGE has succeeded to all the to attend a particular council. By the Act, 3 & 4 Will. rights of the other two Chief Justices, and if so, he would 4, c. 41, however, the absolute freedom of choice of obtain three appointments out of every four. It is to
ecclesiastical judges which the Sovereign had theretofore
ecclesiastical judges whi be observed that by the recent Order in Council for the possessed became limited. “The Judicial Committee" consolidation of the Divisions it is provided that “all was formed, to which all appeals, which by virtue of any powers and authorities which, by any law or custom law, statute, or custom, might be brought before the have heretofore been exercised by the Chief Justice of
| Sovereign in Council, were to be referred for report. the Common Pleas and the Chief Baron of the Exchequer
This Judicial Committee consists of official personages respectively, shall, from and after the time when this designated by the statute itself, so that the power of the order shall take effect, be capable of being exercised Sovereign to delegate the hearing of ecclesiastical appeals by the Lord Chief Justice of England, unless such to particular persons was swept away about fifty years exercise thereof shall be contrary or repugnant to any | ago. Hinc illo lacrimce. express provision in any Act of Parliament contained.”
THE BRITISH TAXPAYER may have something to say to THE ROYAL COMMISSION which will shortly be appointed the bill he is called upon to pay for public litigation to inquire into the constitution and working of the Eccle. during the past year. An additional sum of £30,100 is. siastical Statutes as created or modified under the Re- required beyond the estimated amount, the expenditure formation Statutes of the 24th and 25th years of having been £102,769 instead of $72,669, as was antici. King Henry VIII. " and any subsequent Acts," will pated. This additional outlay is distributed under six enter upon a very difficult and delicate inquiry, The different classes. Under the head of “Criminal Pro“Reformation Statutes" referred to by the Archbishop secutions " there is an increase of £15,400, in of Canterbury would seem to be 24 Hen. 8, c. 12, and explanation of which it is stated that the prose25 Hen. 8, c. 19. These Acts were repealed by 1 & 2 cution of the West of England and South Wales Philip & Mary, c. 8, but revived, together with six other | Bank Directors cost £7,587 (of which sum, how.
ever, only a portion is chargeable to the year opening hour being uniformly eight a.m. The Ballot 1880-81), and that the prosecution of the Northern Act of 1872 leaves the polling hours untouched. It Counties Assurance Association will amount to £7,230. appears that this state of the law has been found Under the head of “Legal Proceedings," an additional to be unsatisfactory, and we are not surprised that it sum of £4,200 has to be provided, which is attributed to should be so. There are many boroughs where an exthe recent ecclesiastical suits and to two actions by the tension of the hour is needed quite as urgently as in the Lords of the Admiralty. There is also an increase of metropolis. There are many counties containing polling £800 upon the estimate for “ Coin Prosecutions," while places at which the extension from four to five is quite that under the head of “Bankruptcy" has been ex inadequate. A later hour is obviously more convenient in ceeded by £6,500; the recent depression of trade ac. the summer than in the winter months. Lastly, whatcounting, it is stated, for the increase in the number of ever the hour may be, it is of the very greatest consecases in which the judge has directed the Solicitor to quence that it should be easily ascertainable by every the Treasury to prosecute fraudulent bankrupts. There voter. is an increase of £500 under the head of “Rewards, We think that the burden of fixing the hour is un. &c.," and of £2,700 under that of “Parliamentary wisely thrown upon local authorities, who are proAgency," the latter head including $1,129 8s. for the verbially worried to death already by the statutes parliamentary agents' costs re Metropolitan Waterworks perpetually being passed which leave details to be Purchase Bill. The estimate for law charges and crimi carried out by their resolutions. Also the fluctuations nal prosecutions in Ireland has been exceeded by £6,600, which the clause provides for will render it a matter the fees to law officers and other counsel in the recent of difficulty to ascertain in a moment what the polling State prosecutions having amounted to £3,100.
hours are. We would suggest, therefore, that occasion should be taken to consolidate the polling hours enactments, and to provide a fixed hour, varying only with
population and periods of the year, determined by BALLOT ACT AMENDMENT. statute. But we see no particular objection to an THE Ballot Act, 1872, was, as originally drawn, a
eight o'clock closing all round. permanent measure, but while it was passing through
Passing over the other clauses of the Bill, we come to the House of Lords their lordships, on the motion of the
the schedules. It will be remembered that very material Duke of Richmond, the then leader of the Opposition,
portions of the Ballot Act, 1872, are contained in the inserted a clause to the effect that the Act should “con.
schedule to that Act, and the schedules to the amending tinue in force till the 31st day of December, 1880, and
Bill will be found to contain some important provisions. no longer, unless Parliament should otherwise deter
First amongst these we notice the direction that rule mine." Afterwards, by the Expiring Laws Continuance
15 is to be read with the addition that “ in a county or Act, 1880 (43 & 44 Vict. c. 48), the Act was, together
borough there shall be at least one polling station for with a heterogeneous mass of “expiring” statutes, con
every five hundred electors.” We think that this is a tinued until the 31st of December, 1881. The Bill
very proper amendment of the present rule, which allows now before Parliament makes the Act of 1872 perpetual,
the returning officer an unlimited discretion in the and, in fifteen clauses and a rather lengthy schedule,
matter. provides in a fairly workmanlike manner a series of not
We do not see any particular necessity for amending very important amendments of which decisions and ex
rule 31 as suggested. That rule runs: “ The candidates perience have shown the necessity. We will shortly
may respectively appoint agents to attend the counting consider the more material of these amendments.
of the votes." It is proposed to substitute : The third clause very sensibly provides that a ballot “One agent may be appointed by or on behalf of each paper "shall not be void by reason only of a departure candidate to attend the counting of the votes, or if all the from the directions for the guidance of the voter in vot
candidates, with the approval of the returning officer, 60 ing contained in the second schedule to the Ballot Act,
agree, sooh larger number of agents as are so agreed on 1872, if it appears to the satisfaction of the returning
may be appointed to attend the counting of the voles." officer or of the court at the trial of an election petition We suppose that the alteration is suggested by reports tbat the ballot-paper shows for whom the voter intended of the exhaustion which must have occasionally befallen to vote, and that such departure from the directions was agents who have attended continuous and protracted not intended by the voter to enable his vote to be counts. We should have thought that a relaxation of the identified, and, having regard to the circumstances, rules which prescribe continuous counting would better does not enable his vote to be identified.” This have met the case. At any rate, we think some limit is in affirmance of Woodward v. Sarsons (L. R. should be placed upon the number of agents who are to 10 C. P. 733), and, indeed, the wording of the | attend, in order to avoid confusion and discussion. clause reminds one very forcibly of the language of The alterations of rules 29, 34, and of “so much of Brett, L.J., in the judgment in that case. It will be rule 37 as is repealed by this Act," appear to be sugremembered that the Scotch judges in Haswell v. gested by Stowe v. Jolliffe (No. 1) (L. R. 9 C. P. 446). Stewart (2 O'M, & H. 215), had disallowed a triple They are of a very minute character, and the only obcross and a straight line, whereas the Court of Common servation we have to make upon them is that we think Pleas, in the case to which we have referred, allowed two it better, for the sake of clearness, that rule 37 should crosses, three crosses, and various other instances of be repealed altogether, and re-enacted with the necesdeviation from the statutory cross.
sary amendments. The sixth clause is rather an important one, and is, The “statement in tabular form,” which the rewe think, open to grave objection. By the use of a turning officer is to send to a Secretary of State, will very complicated machinery of resolutions of local entail considerable additional labour on the part of the bodies, inquiries to be directed by the Privy Council, clerks of that officer. By rule 36 a return is to be and Privy Council orders, power is given to the local made to the Clerk of the Crown in Chancery of the authorities “ who have power to divide a borough into number of ballot-papers rejected under the heads of polling districts, to direct that the poll taken at a par “ Want of official mark," and three other heads. The liamentary election for such borough shall be kept open Bill adds seven other particulars to the proposed table, until eight o'clock in the afternoon.” The present law such as the number of voters on the register, the number of the subject is this : in boroughs, except metropolitan of voters to whom ballot-papers were delivered, the boroughs, the poll is open from eight a.m. till four p.m., number of votes counted, &c. All which statements by 5 and 6 Will. 4, c. 36, s. 2. In metropolitan boroughs will, we suppose, be printed in some future parliamenta the hour of closing is eight p.m., by 41 Vict. c. 4. In | ary paper. counties the hour is five p.m., by 16 & 17 Vict. c. 15, the
twenty-one years, and building leases for not exceeding THE CONVEYANCING BILL.
ninety-nine years, every such lease to take effect in posses
sion not later than twelve months after its date; to reserve III.--As To MORTGAGES.
the best rent, without fine ; to contain a covenant by the The provisions of this Bill as to mortgages deserve care lessee for payment of rent, and a condition of re-entry on Jul consideration. We have, first of all, some clearly non-payment of rent; and a counterpart of each lease to advisable alterations of technical rules. Thus clause 19 be executed. If the lease is made by the mortgagor, he proposes to put an end to the doctrine that in strictness is, within one month after making the lease, to deliver to a mortgagee cannot be compelled to assign the mort the mortgagee a counterpart duly executed by the lessee, gage debt on redemption either by the mortgagor or by
but the lessee is not to be concerned to see that this proa stranger. The clause-which is to apply to mort
vision is complied with. This follows the usual covenant gages made either before or after the commencement of | on the part of mortgagor to whom a power of leasing is she Act, and notwithstanding expressions of intention to given, but, considering the importance to the mortgagee the contrary-provides that, “ where a mortgagor is en. of knowing the existence and terms of tenancies of the titled to redeem, he shall, by virtue of this Act, have mortgaged property, so as to be able to avail himself of power to require the mortgagee, instead of re-conveying, the powers of a landlord, it does not seem very safe to und on the terms on which he would be bound to re- rely upon the mere statutory direction. The whole of convey, to assign the mortgage debt, and convey the the clause relating to the leasing powers of mortgagor and mortgaged property to any third person, as the mortgagor mortgagee is only to apply in the absence of the expression directs; and the mortgagee shall, by virtue of this Act,
of a contrary intention in the mortgage deed" or other. be bound to assign and convey accordingly." An ex
wise in writing." Can this last provision have been conception is made in the case of a mortgagee who is, or has sidered ? By whom is this contrary intention to be exbeen, in possession.
pressed “otherwise in writing"? The Bill does not say. The next clause (20) proposes to abolish the absurd We conclude it is by the person not a party to the lease male that the mortgagee cannot be compelled by his
who is to be bound by it. If so, at any time after a mortgagor to produce the title deeds for inspection, mortgage, not containing any express power to lease, the unless the mortgagee is solicitor to the mortgagor, or | mortgagee may deprive the mortgagor of his statutory the title deeds relate also to property not subject to the power to lease by writing a letter expressing a contrary mortgage. It is provided that a mortgagor, so long as intention. It does not appear that the letter need even bis right to redeem subsists, shall be entitled “from time
reach the mortgagor; all that is necessary is that the to time, at reasonable times, on his request, and at his contrary intention shall be “expressed in writing.” How own cost, and on payment of the mortgagee's costs and then is it supposed that anyone can safely accept a lease expenses in this behalf," to inspect and take copies, | from a mortgagor under this new statutory power? He abstracts, or extracts from the title deeds. This clause can only do so after he has obtained a declaration is applicable only to mortgages made after the by the mortgagee that he has not expressed in commencement of the Act, but as to these it will writing any “contrary intention.” It is odd that, operate, notwithstanding any stipulation to the con
while nothing is said of agreement between morttary.
gagor and mortgagee with reference to the expres. The next provision is referred to in the marginal note
sion of a contrary intention“ otherwise in writing," it is as "restriction on consolidation of mortgages." If we read
expressly provided that the provisions of this clause, or aright the provision, it is aimed at the abolition (subject to
any of them, may, “by agreement made after the comexpression of a contrary intention) of all consolidation,
mencement of this Act, between mortgagor and mortproperly so called. Consolidation of mortgages is the
gagee, be applied to a mortgage made before the comunion of several debts respectively charged upon several
mencement of the Act," but nothing is here said about estates. Now, the clause provides “that a mortgagor
this agreement being in writing. The whole of this seeking to redeem any one mortgage shall, by virtue of
clause appears to be rather loosely drafted. this Act, be entitled to do so, without paying any money
Clause 23 deals with the powers incident to the estate due under any separate mortgage made by him, or by
of a mortgagee. In a mortgage by deed made after the any person through whom he claims, on property other
commencement of the Act, in the absence of the expresthan that comprised in the mortgage which he seeks to
sion in the deed of a contrary intention, there is to be redeem. This section applies only if and as far as a
implied the ordinary power of sale, exerciseable either on contrary intention is not expressed in the mortgage
three months' notice, or two months' arrear of interest, or deeds, or one of them.” That is to say, unless it is
breach of some provision in the mortgage deed or “ in expressly provided in one of the mortgages that it shall
this Act" by the mortgagor to be observed or performed, not be redeemed unless all other mortgages on different
other than a covenant for payment of the mortgage estates due by the same mortgagor to the same mort.
money or interest; a [limited-see clause 27] power to gagee are also redeemed, the right of consolidation proper
insure and keep insured any building, the premiums paid (as distinguished from tacking) will be gone. The
being a charge on the mortgaged property; a power section is to apply only where the mortgages, or one of
when the mortgage money has become due to appoint & them, are or is made after the commencement of the Act.
receiver ; and a power, while the mortgagee is in possesIf this provision is passed into law, solicitors will have to
sion, to cut and sell timber and other trees ripe for inquire of every mortgagee for whom they act whether
cutting, and not planted or left standing for shelter or he has formerly lent any money to the same mortgagor
ornament. Clauses 25 and 26 make the usual subsidiary on a different property, and if he has, will have to provisions applicable. insert a consolidation clause in the mortgage. In order to avoid the possibility of mistake, there can be little doubt that there will be inserted in every mortgage deed a consolidation clause, and thus the only re. sult of the proposed legislation will be the length
“ Urgency" says the London correspondent of the Manchesening of instruments which the Act is designed to
ter Guardian, “ is producing eff-cts which bare not yet been shorten.
observed outside the House of Commons. The Speaker, it The succeeding clause relates to the leasing powers
is understood declines to take opposed private business while e
Bill which has been declared urgent is before the House, and of mortgagor and mortgagee in possession. It proposes
the consequence is that such Bills as the Great Eastern Railway to enable a mortgagor in possession, as against every Bill-which Mr. Bryce opposes as chairman of the Preservaincumbrancer, and a mortgagee in possession, as against tion of Commons Committee, because it is proposed to carry all prior incumbrancers and the mortgagor, to grant la line across Epping Forest-and other Bills of an impor"agricultural or occupation " leases for not exceeding | tant character are for the present laid aside."
has really no bearing on it. On reference to section 126 REVIEWS.
it appears that there are two meetings of creditors. The second confirms what the first has done. Under section
28 there is but one meeting, with reference to which the PARISH LAW.
judge is, as Lord Justice James has observed, in a posiSTEER'S PARISH LAW; BEING A DIGEST OF THE LAW I tion similar to that of the second meeting in section 126.
RELATING TO THE CIVIL AND ECCLESIASTICAL GOVERN That second meeting has to investigate everything, and, MENT OF PARISHES AND THE RELIEF OF THE POOR. on the discovery of important matters which were unFOURTH EDITION. By WALTER HENRY MACNAMARA, known at the time of the first meeting, may, as it thinks Barrister-at-Law. Stevens & Sons; H. Sweet; and fit, upset or confirm the resolution of the first meeting. W. Maxwell & Son.
Why should not a judge exercise the same power as this It is, we believe, over twenty years since the last second meeting of creditors ?”. edition of Steer was published, and in the meantime | I will answer the question by pointing out the follow. legislation has so greatly altered the position of the ing distinctions between the procedure under the two parish, that “ Local Government Law” would probably sections, which, to my mind, are quite sufficient to acbe a more appropriate title for the book. Mr. Macnansara count for the Legislature requiring two meetings to be has remodelled it with care and judgment, and held under section 126, and only one under section 28, we think it will be found an acceptable manual for without intending to give the court ary more powers lawyer and layman. Bearing in mind that it is de- | under the one than under the other section. scribed as a digest, and that without rigorous compression First, then, under section 126, the creditors have no it could not have been kept within anything like its opportunity of ascertaining the position of their debtor present size, we cannot reasonably complain of the some or of seeing a statement of bis affairs until they assemble what scanty treatment of some subjects, but we confess at the first meeting. This, I submit, is a very good We should have been glad to have found some sugges reason why another meeting should be held to confirm tions as to the points which have been raised on the new any resolutions which may then be come to. On the Burials Act, and as to the provision of 41 & 42 Vict. other hand, a meeting called under section 28 is really a G 77, s. 23, as to extraordinary traffic.
second meeting, it being necessary, before such a meet. ing can be called, that a first meeting shall have been held, at which a statement of affairs shall have been
produced, the debtor examined thereon, and a trustee CORRESPONDENCE.
appointed, and the resolutions passed at such meeting
must have been duly registered. Therefore, as regards SECTION 26 OF THE BANKRUPTCY ACT, 1869.
the opportunity of investigating the debtor's affairs and
transactions, the creditors are at least in as good a posi[To the Editor of the Solicitors' Journal.] tion when they assemble at a meeting called under the Sir, -The recent case of Exc parte The Merchant | 28th section as they are at a second meeting under the Banking Company, Re Durham, reported 29 W. R. | 126th section. In fact, they are in a very much better 363 (and noted 25 SOLICITORS' JOURNAL, 295), deserves position in this respect, for they have had the opportuthe careful attention of the profession. When we find pity of a much more complete and searching investigation the Court of Appeal, eleven years after the Bankruptcy being made by the trustee and committee of inspection Act, 1869, has come into force, deliberately overruling appointed by them than they could possibly make by the Chief Judge upon the construction of a section of the simply questioning the debtor at the meeting, which is Act which goes to the very root of the policy which was | practically all they have the opportunity of doing under supposed to pervade the Act-viz., that the statutory section 126. majority of creditors, acting bona fide, should, in all | Secondly, the notice calling the first meeting under cases, be the judges both of the conduct of their debtors section 126 (form 108) does not give to the creditors any and of the course which should be pursued in regard to | intimation whatever whether any, or, if any, what, offer the realization and winding up of their 'estates-the l of composition will be laid before the creditors at the general public may, I think, well exclaim about “the meeting, so that, until they actually arrive at the meetglorious uncertainty of the law.” With the very highest | ing, they have no opportunity of considering the offer or respect for the judges of the Court of Appeal, however, I of forming any opinion thereon. This, again, is a very venture to suggest that the conclusion come to by them good reason why a second meeting should, in such case, in opposition to that of the Chief Judge is not consistent be required to be held to confirm the resolutions. Now, with the intention or the provisions of the Bankruptcy on the other hand, the notice convening a meeting Act, and for the following reasons :
under section 28 must, under rule 304, be sent by post to The question was upon the construction of the 28th each of the creditors who have proved their debts seven section of the Act, which provides that "the trustee may, days previously, and must state“ the object of the meetwith the sanction of a special resolution of the creditors, I ing and the business proposed to be transacted thereat." ... accept any composition offered by the bankrupt, | And in practice it has always been required that or assent to any general scheme of settlement of the the notices shall state fully the proposition to be laid affairs of the bankrupt, upon such terms as may be before the creditors.
before the creditors. So tha
So that, when the creditors asthought expedient, . . . subject nevertheless to the semble at the meeting, they are in a position to fully approval of the court." The Chief Judge held (quoting | discuss the proposition to be laid before them, and to come from the note of the case in the SOLICITORS' JOURNAL) to a final determination thereon without a second meeting " that there was, in regard to the functions of the court, having to be held. no distinction between sections 28 and 126, and that the It is also important, upon this point, to consider the court had no power to set aside the determination of the fact that, under section 126, the majority required to creditors unless it was shown that there had been some confirm the resolutions at the second meeting is only a fraud in the proceedings.” But the Court of Appeal re- | majority in number and value, while the majority reversed this ruling, and held that the court had an quired at the first meeting, like the majority required at absolute discretion to approve or otherwise of the scheme a meeting under section 28, is a majority in number assented to by the creditors; and it is to the reasons as representing three-fourths in value, so that, supposing signed by the Master of the Roils and the other judges the resolution to be carried at the first meeting, it constituting the court for coming to this conclusion that would require a very substantial defection in value from I venture to take exception.
the creditors voting in favour at the first meeting to . First, then, the Master of the Rolls is reported to have prevent it from being confirmed at the second meeting. said: “ The meaning of section 28 is clear. Section 126 Evidently, therefore, the Legislature intended to provide