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LONDON, MARCH iz, 1881.
CrEEXin Topics 347
Ballot Act Amendment 340
The Conveyancing Bill 350
Rettctts • 351
CoiIKPOSDBirCB * 351
Nsw Ciders 352
•cafis o? The Week:—
Ki parte The Baroness Wilioujrhby D'Ereshy 353
Fisher v. Hull, Barnsley, and West Hiding Junction Railway
and Dock Company - 353
Lonv T. Ovenden •« 354
DayV. Finch 354
McMahon v. Field 354
Hastings v. Hnrley 354
Bfrgmann v. Macmillan 354
Hamilton v. Chaine, Morgan, Claimant 355
'CASI3 BKFOBK TUB BANKRUPTCY Reqistraes
Re Stanley Harris 355
Lay Students* Journal •« 356
Pending Legislation 357
Legal Appointments 358
Creditors* Claims 359
Court Papers 360
Legislation Of The Week 300
London Gazettes, &c, &c • 361
CASES REPORTED In The WEEKLY REPORTER.
Atlantic Mntnal Marine Insurance Company v. Huth (App.).... 387 Cape Breton Company (Limited) v. Fenn and others (App.)...* 386
Chatwrby, Ex parte. In re Wix (Bkcy.) 400
Conybeare v. Lewis (Ch.Div. M.R.) 394
Coop, In re. Ex parte Drew (App.) 390
Katoo v. Basker and others (Ex. Div.) - 393
"Fanchon," The (Adm. Div.) 399
Farina's Trade-Marks, In re (Ch Div. M.R.) 391
Foster, In re. Merrill v. Morton (Ch.Div. V.C.M.) 304
Frazer & Co. v. Cuthbertson (Q.B. Div.) 396
Harrison v. Leutnor (Ch.Div. M.R.) 393
MacLaren & Walker, Ex parte. In re MacColla (App.) 389
Robinson v. Pickering (App.) 385
Ward, Sturt, & Sharp's Trade-Marks, In re (Ch.Div. V.C.H.) 395
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 of the Rolls.
The Benchers of the Inner Temple have acceded to the resolution recently passed by the other three Inns of Court relative to the call of solicitors to the bar ; and the regulations will now be altered so as to enable solicitors to be called after the lapse of one year only.
An Odd Mistake occasioned somo excitement in Lin coln's-inn on Wednesday. In the daily cause-paper of the Chancery Division, issued on that evening, there was a list of causes stated as to be heard before Vice-Chancellor Malins on the following day. The list in reality belonged to Vice-Chancellor Hall, and a revised edition of the paper was issued next morning.
Probablt The Most Lenqthy trial ever known in an action for negligence against solicitors, The Berlin Phoiphate Sewage and Manure Company [Limited) v.
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.
It Was Stated by Mr. Shaw-lefeyre in the House of Commons this week that the new Courts of Justice will provide accommodation for twenty-one separate and distinct courts. Under the original plan, with reference to which the contract with the builders was made, only eighteen courts were provided for, and as that plan has, until the present time, we believe, been strictly carried out in that respect, it will be interesting to know in what part of the building, or on what part of the surplus ground, the three extra courts spoken of by the First Commissioner are to be provided.
The Lamented Death of Sir H. M. Jackson after being appointed a judge, but before being sworn in, is probably without parallel in our judicial history. The nearest (but a very different) case is that of Lord Hardwicke's son, the Hon. Charles Torke, who, in 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 Council aud as Lord Chancellor, and received the seals, but he died three days afterwards, before taking his seat in the Court of Chancery, and before his patent of peerage as Lord Morden had passed the Great Seal.
The Usual Consequence of a cause list being built up during a seasou of delayed heariug, has occurred with reference to the Middlesex list. Under such circumstances a cause list swells rapidly, but as Mr. Justice 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 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 Will Be Observed from the reprint of the Solicitors Remuneration Bill, as brought iuto the House of Commons, which will be found elsewhere, that an amendment which we have persistently urged ever since the Bill first saw the light, has now at last been adopted. The President of the Incorporated Law Society for the time being has been added to the body who are to make the rules for regulating the remuneration of solicitors. It is now provided that, "In England, the Lord Chancellor, the Lord Chief Justice of Euglaud, the Master of the Rolls, and the President for the time being of the Incorporated Law Society, or any three of them, the Lord Chancellor being one," shall make the general order as to remuneration. And it is also provided that, ono month at least before any such general order is made, a copy of the regulations and provisions proposed to be embodied therein shall be communicated in writing 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 thereon," and the rule-making body are to take into consideration these observations and suggestions, and, after duly considering the same, are to make the order.
Inside The Cover of the new edition of the Chronological Table and Index of the Statutes, which hag just been issued to the subscribers to the Law Report) for 1881, there is a label apparently designed to commemorate the liberality of the Council of Law Reporting. It is stated that the volume is "presented" by the council to the subscribers. This is n mistake. The subscribers present the book to themselves, and are forced to do so by the council. It is worth while to turn to the statement made by Lord Frederick Cavendish in the House of Commons in answer to Mr. Macdonald on the 18th of February last. From that statement it appears that the council made a bargain with the Government to take 5,000 copies of the Index at 5s. a copy. The Government, no doubt, showed some generosity to the council. Mr. Macdonald, speaking on behalf of the public, would probably have' called it partiality. At all events 10s., the price at which the book is offered to the publio, is "considerably less than the cost price of the paper and printing." But in some unexplained way it appears that the cost is covered by disposing of 5,000 copies at 5s. a copy. However this may be, the council spent £1,250 on the purchase. In other words, £1,250 subscribed for law reports have been diverted in order to give the subscribers what they have not asked for.
Some Dipfictilt Questions are likely to arise as to the patronage hitherto exercised by the Chief Justice of the Common Fleas and the Chief Baron, and we gather from Mr. Gladstone's statement in the House of Commons that legislation on the subject is contemplated. The Supremo Court of Judicature (Officers) Act, 1879, provides, by section 9, that " the right of filling any vacancy in the office of Master of the Supreme Court or in any clerkship in the Central Office shall" (except in the cases of the Queen's Coroner and Master of the Crown Office, the patronage of which is reserved to the Lord Chief Justice of England) "be vested in the Lord Chief Justice of England, the Master of the Bolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, in rotatiou, and in such order as they by agreement among themselves determine," while, subject as aforesaid, the right of filling any vacancy in, and making any new appointment in, the Central Office is vested in the Lord Chancellor, with the approval of the Treasury. The extent of Lord Coleridge's patronage depends upon the construction of this section. It may be urged that, since two of the three Chief Justiceships have ceased to exist, the patronage will be now divided equally between the Lord Chief Justice of England and the Master of the Bolls. On the other hand, it may be contended that Lord Colebidoe has succeeded to all the rights of the other two Chief Justices, and if so, he would obtain three appointments out of every four. It is to be observed that by the recent Order in Council for the consolidation of the Divisions it is provided that "all powers and authorities which, by any law or custom have heretofore been exercised by the Chief Justice of the Common Fleas and the Chief Baron of the Exchequer respectively, shall, from and after the time when this order shall take effect, be capable of being exercised by the Lord Chief Justice of England, unless such exorcise thereof shall be contrary or repugnant to any express provision in any Act of Farliament contained."
The Royal Commission which will shortly be appointed to inquire into the constitution and working of the Ecclesiastical Statutes as created or modified under the Reformation Statutes of the 24th and 25th years of King Henry VIII." and any subsequent Acts," will enter upon a very difficult and delicate inquiry. The "Reformation Statutes " referred to by the Archbishop of Canterbury would seem to be 24 Hen. 8, c. 12, and 25 Hen. 8, c. 19. These Acts were repealed by 1 & 2 Philip & Mary, c. 8, but revived, together with Bis other
Acts, in pari materia, but not relating to courts ecclesiastical, by 1 Eliz. c. 1, from the preamble to which we learn that the whole eight " were made and established1 as well for the utter extinguishment and putting away of all usurped and foreign powers and authorities out of this realm, as also for the restoring and uniting to the Imperial Crown of this realm the ancient jurisdictions and authorities, superiorities, and pre-eminencies to the same of right belonging and appertaining." Turning to the two Acts, the preamble to 24 Hen. 8, c. 12, recites that " by dyverr sundrie olde autentike histories and cronicles, it is manifestly declared and expressed that this realme of Euglond is an impire, and so hathe been accepted in theworlde, govned by ovr suprme heede and King .... unto whom a body politike . . . devided in termes and by names of Bpualties and temporaltie, ben bounden and owen to bere nexte to God a naturall and. humble obedience." The Act then prescribes that in lieu of the appeal to Rome there shall be an appeal from the archdeacons to the bishops, and from the bishops to the archbishops, from whom there is to be noappeal except iu matters touching the King, in which matters there appears to be an appeal to the 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."" This Act provides that for lack of justice at or in any of the courts of the archbishops of this realm, or in any of the King's dominions, it shall be lawful to the parties aggrieved to appeal to the Kiug's Majesty "in the Kynges Court of Chauncie, and that upon every suche appele a comission shal be directed under the Create Sealeto such psones as shall be named by the Kynges Highnes lyke as in case of appele frome the Admyrall Courte, to here and dyffynytyvly determyne such appele." It will be noticed that these commissioners, afterwards called the " High Court of Delegates," may have been few or many, lay or spiritual persons, at the absolute pleasure of the Crown; while at the same time it was from the Crown, not from the Act of Parliament, that the individual commissioners, as distinguished from the commission as a body, derived their appointments. The Act, 2 & 3 Will. 4, c. 92,. although it repealed so much of the Act 25 Hen 8, c. 19, as empowered the Sovereign "to grant a commission' authorizing the persons named therein to hear and determine such [ecclesiastical] appeals," and transferred the powers of the High Court of Delegates to the Sovereign in Council, did not effect so great a change as may have been generally supposed. Privy Councillors have always been named at the absolute pleasure of the Sovereign, and no particular Privy Councillor had ever any exclusive right to attend a particular council. By the Act, 3 & 4 Will. 4, c. 41, however, the absolute freedom of choice of' ecclesiastical judges which the Sovereign had theretofore possessed became limited. "The Judicial Committee" was formed, to which all appeals, which by virtue of any law, statute, or custom, might be brought before the Sovereign in Council, were to be referred for report. This Judicial Committee consists of official personages designated by the statute itself, so that the power of tho Sovereign to delegate the hearing of ecclesiastical appeals to particular persons was swept away about fifty yearsago. Uinc iWce lacrimal.
The British Taxpayer may have something to say to the bill be is called upon to pay for public litigation during the past year. An additional sum of £30,100 is required beyond the estimated amount, the expenditure having been £102,769 instead of £72.669, as was anticipated. This additional outlay is distributed under six different classes. Under the head of "Criminal Prosecutions" there is an increase of £15,400, in explanation of which it is stated that the prosecution of the West of England and South Wales Bank Directors cost £7,587 (of which sum, however, only a portion is chargeable to the year 1880—81), and that the prosecution of the Northern Counties Assurance Association will amount to £7,230. Under the head of "Legal Proceedings," an additional sum of £4,200 has to be provided, which is attributed to the recent ecclesiastical suits and to two actions by the Lords of the Admiralty. There is also an increase of £800 upon the estimate for "Coin Prosecutions," while that under the head of "Bankruptcy" has been exceeded by £6,500; the receut depression of trade accounting, it is stated, for the increase in the number of cases in which the judge has directed the Solicitor to the Treasury to prosecute fraudulent bankrupts. There is an increase of £500 under the head of "Rewards, Ac.," and of £2,700 under that of "Parliamentary Agency," the latter head including £1,129 8s. for the parliamentary agents' costs re Metropolitan Waterworks Purchase Bill. The estimate for law charges and criminal prosecutions in Ireland has been exceeded by £6,600, the fees to law officers and other counsel in the recent State prosecutions having amounted to £3,100.
BALLOT ACT AMENDMENT.
The Bt.llot Act, 1872, was, as originally drawn, a permanent measure, but while it was passing through the House of Lords their lordships, on the motion of the Duke of Richmond, the then leader of the Opposition, inserted a clause to the effect that the Act should "continue in force till the 31st day of December, 1880, and no longer, unless Parliament should otherwise determine." Afterwards, by the Expiring Laws Continuance Act, 1880 (43 & 44 Vict. c. 48), the Act was, together with a heterogeneous mass of "expiring " statutes, continued until the 31st of December, 1881. The Bill now before Parliament makes the Act of 1872 perpetual, and, in fifteen clauses and a rather lengthy schedule, provides in a fairly workmanlike manner a series of not very important amendments of which decisions and experience have shown the necessity. We will shortly consider the more material of these amendments.
The third clause very sensibly provides that a ballotpaper "shall not be void by reason only of a departure from the directions for the guidance of the voter in voting contained in the second schedule to the Ballot Act, 1872, if it appears to the satisfaction of the returning officer or of the court at the trial of an election petition that the ballot-paper shows for whom the voter intended to vote, and that such departure from the directions was not intended by the voter to enable his vote to be identified, and, having regard to the circumstances, does not enable his vote to be identified." This is in affirmance of Woodward v. 8ar$ons (L. R. 10 C. P. 733), and, indeed, the wording of the clause reminds one very forcibly of the language of Brett, L.J., in the judgment in that case. It will be remembered that the Scotch judges in Eatwell v. Stewart (2 O'M. & H. 215), had disallowed a triple cross and a straight line, whereas the Court of Common Plea?, in the case to which we have referred, allowed two crosses, three crosses, and various other instances of deviation from the statutory cross.
The sixth clause is rather an important one, and is, we think, open to grave objection. By the use of a very complicated machinery of resolutions of local bodies, inquiries to be directed by the Privy Council, and Privy Conncil orders, power is given to the local authorities "who have power to divide a borough into polling districts, to direct that the poll taken at a parliamentary election for such borough shall be kept open until eight o'clock in the afternoon." The present law of the subject is this: in boroughs, except metropolitan boroughs, the poll is open from eight a.m. till four p in., by 5 and 6 Will. 4, c. 36, s. 2. In metropolitan boroughs the hour of closing is eight p.m., by 41 Vict. c. 4. In counties the hour is five p.m., by 16 & 17 Vict. c. 15, the
opening hour being uniformly eight a.m. The Ballot Act of 1872 leaves the polling hours untouched. It appears that this state of the law has been found to be unsatisfactory, and we are not surprised that it should be so. There are many boroughs where an extension of the hour is needed quite as urgently as in the metropolis. There are many comities containing polliug places at which the extension from four to five is quite inadequate. A later hour is obviously more convenient in the summer than in the winter months. Lastly, whatever the hour may be, it is of the very greatest consequence that it should be easily ascertainable by every voter.
We think that the burden of fixing the houc is unwisely thrown upon local authorities, who are proverbially worried to death already by the statutes perpetually being passed which leave details to be carried out by their resolutions. Also the fluctuations which the clause provides for will render it a matter of difficulty to ascertain in a moment what the polling hours are. We would suggest, therefore, that occasion Bhould 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 statute. But we see no particular objection to an eight o'clock closing all round.
Passing over the other clauses of the Bill, we come to the schedules. It will be remembered that very material portions of the Ballot Act, 1872, are contained in the schedule to that Act, and the schedules to the amending Bill will be found to contain seme important provisions. First amongst these we notice the direction that rule 15 is to be read with the addition that "in a county or borough there shall be at least one polling station for every five hundred electors." We think that this is a very proper amendment of the present rule, which allows the returning officer an unlimited discretion in the matter.
We do not see any particular necessity for amending rule 31 as suggested. That rule runs: "The candidates may respectively appoint agents to attend tho counting of the votes." It is proposed to substitute:
"One agent may be appointed by or on behalf of each candidate to attend the counting of the votes, or if all the candidates, with the approval of the returning officer, so agree, such larger number of agents as are so agreed on may be appointed to attend the counting of the votes."
We suppose that the alteration is suggested by reports of the exhaustion which must havo occasionally befallen agents who have attended continuous and protracted counts. We Bhould have thought that a relaxation of the rules which prescribe continuous counting would better have met the case. At any rate, we think some limit should be placed upon the number of agents who are to attend, in order to avoid confusion and discussion.
The alterations of rules 29, 34, and of "so much of rule 37 as is repealed by this Act," appear to be suggested by Stowe v. Jolliffe (No. 1) (L. R. 9 C. P. 446). They are of a very minute character, and the only observation we have to make upou them is that we think it better, for the sake of clearness, that rule 37 should be repealed altogether, and re-enacted with the necessary amendments.
The "statement in tabular form," which the returning officer is to send to a Secretary of State, will entail considerable additional labour ou the part of the clerks of that officer. By rule 36 a return is to be made to the Clerk of the Crown in Chancery of the number of ballot-papers rejected under the heads of "Want of official mark," and three other heads. The Bill adds seven other particulars to tho proposed table, such as the number of voters on the register, the number of voters to whom ballot-papers were delivered, the number of votes counted, &c. All which statements will, we suppose, be printed iu some future parliamentary paper.
THE CONVEYANCING BILL.
III.—As To Mortgages.
Tn previsions of this Bill as to mortgages deserve careful consideration. We have, first of all, some clearly advisable alterations of technical rules. Thus clause 19 proposes to put an end to the doctrine that in strictness a mortgagee cannot be compelled to assign the mortgage debt on redemption either by the mortgagor or by a stranger. The clause—which is to apply to mortgages made either before or after the commencement of ibe Act, and notwithstanding expressions of intention to the contrary—provides that, "where a mortgagor is entitled to redeem, he shall, by virtue of this Act, have power to require the mortgagee, instead of re-conveying, and on the terms on which he would be bound to recanvey, to assign the mortgage debt, and convey the mortgaged property to any third person, as the mortgagor directs ; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly." An exception is made in the case of a mortgagee who is, or has been, in possession.
The next clause (20) proposes to abolish the absurd role that the mortgagee cannot be compelled by his mortgagor to produce the title deeds for inspection, unless the mortgagee is solicitor to the mortgagor, or the title deeds relate also to property not subject to the mortgage. It is provided that a mortgagor, so long as his right to redeem subsists, shall be entitled "from time to time, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf," to inspect and take copies, abstracts, or extracts from the title deeds. This clause is applicable only to mortgages made after the commencement of the Act, but as to these it will operate, notwithstanding any stipulation to the contrary.
The next provision is referred to in the marginal note as " restriction on consolidation of mortgages." If we read aright the provision, it is aimed at the abolition (subject to expression of a contrary intention) of all consolidation, properly so called. Consolidation of mortgages is the union of several debts respectively charged upon several estates. Now, the clause provides "that a mortgagor seeking to redeem any one mortgage shall, by virtue of this Act, be entitled to do so, without paying any money due under any separate mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage which he leeki to rttieem. This section applies only if and as far as a contrary intention is not expressed in the mortgage deeds, or one of them." That is to say, unless it is expressly provided in one of the mortgages that it shall not be redeemed unless all other mortgages on different •states due by the same mortgagor to the same mortgagee are also redeemed, the right of consolidation proper (as distinguished from tacking) will be gone. The section is to apply only where the mortgages, or one of them, are or is made after the commencement of the Act. If this provision is passed into law, solicitors will have to inqoire of every mortgagee for whom they act whether he has formerly lent any money to the same mortgagor on a different property, and if he has, will have to 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 tn every mortgage deed a consolidation clause, and thus the only result of the proposed legislation will be the length•*»g of instruments which the Act is designed to shorten.
The succeeding clause relates to the leasing powers ef mortgagor and mortgagee in possession. It proposes to enable a mortgagor in possession, as against every incumbrancer, and a mortgagee in possession, as against all prior incumbrancers and the mortgagor, to grant 41 agricultural or occupation" leases for not exceeding
twenty-one years, and building leases for not exceeding ninety-nine years, every such lease to take effect in possession not later than twelve months after its date; to reserve the best rent, without fine; to contain a covenant by the lessee for payment of rent, and a condition of re-entry on non-payment of rent; and a counterpart of each lease to be executed. If the lease is made by the mortgagor, he is, within one month after making the lease, to deliver to the mortgagee a counterpart duly executed by the lessee, but the lessee is not to be concerned to see that this provision is complied with. This follows the usual covenant on the part of s mortgagor to whom a power of leasing is given, but, considering the importance to the mortgagee of knowing the existence and terms of tenancies of the mortgaged property, so as to be able to avail himself of the powers of a landlord, it does not seem very safe to rely upon the mere statutory direction. The whole of the clause relating to the leasing powers of mortgagor and mortgagee is only to apply in the absence of the expression of a contrary intention in thi mortgage deed "or otherwise in writing." Can this last provision have been considered? By whom is this contrary intention to be expressed "otherwise in writing"? The Bill does not say. We conclude it is by the person not a party to the lease who is to be bouud by it. If so, at any time after a mortgage, not containing auy express power to lease, the mortgagee may deprive the mortgagor of his statutory power to lease by writing a letter expressing a contrary intention. It does not appear that the letter need even reach the mortgagor; all that is necessary is that the contrary intention shall be " expressed in writing." How then is it supposed that anyone can safely accept a lease from a mortgagor under this new statutory power? He can only do so after be has obtained a declaration by the mortgagee that he has not expressed in writing any "contrary intention." It is odd that, while nothing is said of agreement between mortgagor and mortgagee with reference to the expression of a contrary intention " otherwise in writing," it is expressly provided that the provisions of this clause, or any of them, may, "by agreement made after-the commencement of this Act, between mortgagor and mortgagee, be applied to u mortgage made before the commencement of the Act," but nothing is here said about this agreement being tn writing. The whole of this clause appears to be rather loosely drafted.
Clause 23 deals with the powers incident to the estate of a mortgagee. In a mortgage by deed made after the commencement of the Act, in the absence of the expression in the deed of a contrary intention, there is to be implied the ordinary power of sale, exerciseable either on three months' notice, or two months' arrear of interest, or breach of some provision in the mortgage deed or " in this Act" by the mortgagor to be observed or performed, other than a covenant for payment of the mortgage money or interest; a [limited—see clause 27] power to insure and keep insured any building, the premiums paid being a charge on the mortgaged property; a power when the mortgage money has become due to appoint a receiver; and a power, while the mortgagee is iu possession, to cut and sell timber and other trees ripe for cutting, and not planted or left standing for shelter or ornament. Clauses 25 and 26 make the usual subsidiary provisions applicable.
"Urgency" says the London correspondent of the Maruhetter Guardian, "is producing eff-cts which have not yet been observed outside the House of Commons. The Speaker, it is understood declines to take opposed private business while » Bill which has been declared urgent is before the House, and the consequence is that such Bills as the (treat Eastern Railway Bill—which Mr. Bryce opposes as chairman of the Preservation of Commons Committee, because it is proposed to carry a line across Epping Forest—and other Bills of an important character are for the present laid aside."
PARISH LAW. ; Steer's Parish Law; Being A Digest Op The Law Relating To The Civil And Ecclesiastical GovernMent Op Parishes And The Relief Op The Poor. Fourth Edition. By Walter Henrt Macnavara, Barrister-at-Law. Steyens & Sons; H. Sweet; and W. Maxwell ft Son.
It is, we believe, over twenty years since the last edition ot Steer was published, and in the meantime legislation has so greatly altered the position of the parish, that "Local Government Law" would probably be a more appropriate title for the book. Mr. Macnan>ara has remodelled it with care and judgment, and we think it will be found au acceptable manual for lawyer and layman. Bearing in mind that it is described as a digest, and that without rigorous compression it could not have been kept within anything like its present size, we cannot reasonably complain of the somewhat scanty treatment of some subjects, but wo confess we should have been glad to have found some suggestions as to the points which have been raised on the new Burials Act, and as to the provision of 41 ft 42 Vict, c 77, s. 23, as to extraordinary traffic.
SECTION 26 OF THE BANKRUPTCY ACT, 1869. [To the Editor of the Solicitors' Journal.] Sir,—The recent case of Ex parte The Merchant Banking Company, Re Durham, reported 29 W. R. 363 (and noted 25 Solicitors' Journal, 295), deserves the careful attention of the profession. When we flud the Court of Appeal, eleven years after the Bankruptcy Act, 1869, has come into force, deliberately overruling ■the Chief Judge upon the construction of a section of the Act which goes to the very root of the policy which was supposed to pervade the Act—viz., that the statutory majority of creditors, acting bond fide, should, in all cases, be the judges both of the conduct of their debtors and of the course which should be pursued in regard to the realization and winding up of their 'estates—the general public may, I think, well exclaim about "the glorious uncertainty of the law." With the very highest respect for the judges of the Court of Appeal, however, I venture to suggest that the conclusion come to by them in opposition to that of the Chief Judge is not consistent with the intention or the provisions of the Bankruptcy Act, and for the following reaions :—
The question was upon the construction of the 28th section of the Act, which provides that " the trustee may, with the sanction of a special resolution of the creditors, • . . accept any composition offered by the bankrupt, or assent to any general scheme of settlement of the affairs of the bankrupt, upon such terms as may be thought expedient, . . . subject nevertheless to the approval of the court." The Chief Judge held (quoting from the note of the case in the Solicitors' Journal) "that there was, in regard to the functions of the court, no distinction between sections 28 and 126, and that the court had no power to set aside the determination of the creditors unless it was shown that there had been some fraud in the proceedings." But the Court of Appeal reversed this ruling, and held that the court had an absolute discretion to approve or otherwise of the scheme assented to by the creditors; and it is to the reasons assigned by the Master of the Roils and the other judges constituting the court for coming to this conclusion that I venture to take exception.
•First, then, the Master of the Rolls is reported to have said: "The meaning of section 28 is clear. Section 126
has really no bearing on it. On reference to section 126 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 judge is, as Lord Justioe James has observed, in a position similar to that of the second meeting iu section 126. That second meeting has to investigate everything, and, on the discovery of important matters which wero unknown at the time of the first meeting, may, as it thinks fit, upset or confirm the resolution of the first meeting. Why should not a judge exercise the same power as this second meeting of creditors?"
I will answer the question by pointing out the following distinctions between the procedure under the two sections, which, to my mind, are quite sufficient to account for the Legislature requiring two meetiugs to be held under section 126, and only one under section 28, without intending to give the court any more powers under the one than under the other section.
First, then, under section 126, the creditors have no opportunity of ascertaining the position of their debtor or of seeing a statement of bis affairs until they assemble at the first meeting. This, I submit, is a very good reason why another meeting should be held to confirm any resolutions which may then be come to. On the other hand, a meeting called under section 28 is really a second meeting, it being necessary, before such a meeting 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 appointed, and the resolutions passed at such meeting must have been duly registered. Therefore, as regards the opportunity of investigating the debtor's affairs and transactions, the creditors are at least in as good a position when they assemble at a meeting called under the 28th section as they are at a second meeting under the 126th section. In fact, they are in a very much better position in this respect, for they have had the opportunity of a much more complete and searching investigation being made by the trustee and committee of inspection appointed by them than they could possibly make by simply questioning the debtor at the meeting, which is practically all they have the opportunity of doing under section 126.
Secondly, the notice calling the first meeting under sectiou 126 (form 108) does not give to the creditors any intimation whatever whether any, or, if any, what, offer of composition will be laid before the creditors at the meeting, so that, until they actually arrive at the meeting, they have no opportunity of considering the offer or of forming any opinion thereon. This, again, is a very good reason why a second meetiug should, in such case, be required to be held to confirm the resolutions. Now, on the other hand, the notice convening a meeting under section 28 must, under rule 304, be seutby post to each of the creditors who have proved their debts seven days previously, and must state " the object of the meeting and the business proposed to be transacted thereat." And in practice it has always been required that the notices shall state fully the proposition to be laid before the creditors. So that, when the creditors assemble at the meeting, they are in a position to fully discuss the proposition to be laid before them, and to come to a final determination thereon without a second meeting having to be held.
It is also important, upon this point, to consider the fact that, under section 12G, the majority required to confirm the resolutions at the second meeting is only a majority in number and value, while the majority required at the first meeting, like the majority required at a meeting under section 28, is a majority iu number representing three-fourths in value, so that, supposing the resolution to be carried at the first meeting, it would require a very substantial defection in value from I the creditors voting in favour at the first meeting to j prevent it from being confirmed at the second meeting. J Evidently, therefore, the Legislature intended to provide