Page images
PDF
EPUB

the proviso for re-entry with reference to these 'cove well known, and indeed obvious, principles or proponants is sometimes used as a means of extorting money, sitions of law and reason which & judge frequently and we should have thought that the court might be expresses in the course of a judgment, proceeding then to 'trusted so to use its power of relieving against forfeiture show how the facts of the case bring it within such and as not to defeat the proper object of the covenant, which such a principle or proposition. The interest or value of is to secure to the lessor satisfactory and responsible the decision as a precedent, if any, lies in the illustration occupants of the premises. The operation of the relief which the facts afford of the application of the principle; clause is also denied to conditions for forfeiture on bank but there are many principles of such general and various ruptcy, or taking in execution, and, in the case of a min. application that their application does not afford fitting ing lease, to the breach of a covenant or condition for subjects for reports or legal treatises. We have often allowing the lessor to have access to or inspect books, observed with regret how prevalent the tendency is to &c., or to enter or inspect the mine or workings. The report cases which, for the reasons above given, are not law relating to re-entry or forfeiture or relief in case of worth reporting ; and we observe with similar regret the -non-payment of rent, is not to be affected by the new tendency to manufacture treatises by stringing together provision.

long extracts from the judgments in such cases. Of course, if the provisions above mentioned be We are sorry to speak in other than favourable terms of came law, the sections of Lord St. Leonards' Act, and this essay, but we do not attribute any blame to the author section 2 of the Common Law Procedure Act, 1860, except in the choice of his subject. We believe he has relating to relief against forfeiture for breach of cove- done his best with his materials. We do not think the nants to insure, will become unnecessary, and it is pro work could be better done, but we do not think it can be posed to repeal them.

well done at all. The truth is that novel legal subjects are very hard to obtain now, but if an author will endeavour,

for the sake of a taking title, to construct a treatiso out of REVIEWS.

impossible materials, the result cannot be successful, whatever the author's talent or painstaking.

ALTERNATIVE RELIEF.

INTERPLEADER AND ATTACHMENT ALTERNATIVE RELIEF. By ALBERT GORDON LANGLEY,

OF DEBTS.
Barrister-at-Law. Butterworthe.

INTERPLEADER AND ATTACHMENT OF Debts. By MICHAEL We cannot say we think that this essay was worth CABABE, Barrister-at-Law. W. Maxwell & Son. publishing. It seems to us that the author has chosen The author admits that there is no such connection an almost impossible subject. He has perhaps succeeded between the two subjects dealt with in the pages of his as well as was possible, but, in our opinion, no great work as rendered it necessary to combine them in the measure of success was to be hoped for. The essay is same volume, but he pleads that nevertheless practical, if little more than a string of cases hung together by the not logical, considerations may afford a justification for slenderest threads, and in some cases by no perceptible treating the two subjects together. We do not think threads at all. Some matters are hardly capable of being any justification is much needed. Both are useful subreduced to rules or propositions. Cases often occur jects, and the treatise on each of them might have hardly no doubt, both in pleading and in the conduct of business sufficed to make a book of sufficient size by itself. The in court, when a question arises as to the expediency of author does not deal with the practice of interpleader as putting forward alternative cases, and as to the best way it existed in the Court of Chancery prior to the Judicaof shaping such alternatives ; but in the nature of things I ture Act. In his introduction, indeed, he inclines to the these questions are not soluble according to any fixed view that the effect of ord. 1, r. 2, is to abolish such rules or doctrines. The data for their solution vary

practice, and to make the common law practice under indefinitely according to the facts of each case. The the Interpleader Acts solely applicable in all divi. only rules that can be laid down on such a subject are so sions of the High Court of Justice. He admits, obvious that they are not worth while enunciating as however, that there is a difference of opinion in the scientific propositions.

profession on this subject, and in the addenda he Let us take, for example, some of the rules that refers to the case of Hamlyn v. Betteley (L. R. 6 in conclusion the author deduces from the author. Q. B. D. 63), and the remarks there made by ities. The first is that, “subject to certain regula- the Lord Chancellor, as perhaps somewhat in favour tions, alternative relief may be asked, and several of the view that the old chancery practice of causes of action may be joined, in the same state. interpleader is not abolished, and that an action of interment of claim." This, as we understand them, the pleader would still lie. We agree with the author that rules say in so many words. The third is that the

it is somewhat difficult to reconcile this view with the same rules of pleading which prevailed under the words of ord. 1, 1. 2, but if it be correct it does not seem old law prevail now, unless there is anything in the to us to detract from the usefulness of his work. The Judicature Act or in the orders or rules which book refers very fully to the decisions, and seems to be prevents it." Similarly, it needed no magician to tell

| one which will prove useful to anyone having occasion us that. From this last proposition the author de to deal with the subjects of which it treats. A doubt duces-(1)“ A plaintiff must recover secundum allegata may be suggested as to the necessity for these small works et probata, particularly in cases of fraud." (2) He treating of some isolated matter of practice which is may not “hover between two inconsistent alternatives not almost as fully dealt with in the works on practice in distinctly averring either.” (3) “He may always state general. But, on reflection, we think that these works the actual facts, and ask the court to draw one conclu- are undoubtedly useful. They give the latest authorities sion of law from them or another, even although the on the particular subject. Editions of a heavy work on conclusions might be inconsistent," and various other practice in general are only brought out at considerable similar propositions. These supposed rules or proposi. intervals. tions are obviously mere truisms, yet for each of them cases are cited, all the somewhat complicated facts of

MAGISTERIAL SYNOPSIS. these cases being given, and copious extracts from the judgments. Remarks that in a judgment are very ap

Oke's MagisterIAL SYNOPSIS: A PRACTICAL GUIDE FOR propiate as showing the grounds on which the judge

MAGISTRATES, THEIR CLERKS, SOLICITORS, AND CONis deciding the particular case, are mere twaddle

STABLES, &c. THIRTEENTH Edition. By Thomas WILLIAM when they are solemnly reported and afterwards

SAUNDERS, Esq., Barrister-at-Law, Metropolitan Police inserted in a treatise as the enunciations of novel

Magistrate. Two volumes. Butterworths. and important propositions. There are many very The passing of the Summary Jurisdiction Act, 1879,

[ocr errors]

adds considerable interest to the new edition of this As those who support such a Bill do not seem to value standard book. Mr. Saunders, who has already dealt as highly as others the right of contracting parties, with the Act in a separate work, has inserted its pro- could they not go a step further and declare that when visions in the appropriate places, and has prefixed to the a plot subject to rent has been divided, the rent synopsis of offences a salutary caution to magistrates' owner shall only recover out of each part its proportion clerks to bear in mind the discretionary power conferred of the rent? This would remove an objection to many by the Act to mitigate or alter the incidents of imprison- | titles.

A COUNTRY SOLICITOR. ment or fine. We can only hope that justices and their clerks will follow Mr. Saunders' advice, and " commit to

(We said that Mr. Davey's Bill was the best that had memory their discretionary powers, so as to be perfectly

yet been introduced in the House of Commons, but we

bave always disapproved of the proposed mode of meetfamiliar with them, with a view to their adoption when such a course may be deemed desirable.” We should

ing the difficulty by leaving the question of relief to have thought it would have been better, however, in

the discretion of the judge. This, however, appears to be addition to this caution, to insert at the head of each of

the only plan which finds favour in the eyes of our legisthe columns of the synopsis relating to the penalty the

lators, and the need of some remedy is so great that we words “ See S. J. Act, ss. 4–8." The other Acts relating

should be glad to see a Bill in this shape passed into law. to the crimipal law which have been passed since the last

-ED. S.J.] edition are duly noted up, and we have not missed any decisions, but we must protest against the imperfect

THE INCORPORATED LAW SOCIETY AND THE references which are given to the different series of

“LAW LIST." current reports. In a work of this kind the references should either be to the so-called authorized reports, with

[To the Editor of the Solicitors' Journal.] a table prefixed enabling the reader to find for himself

Sir,-Can you find space for the enclosed correspond. the corresponding volume in all the other series of ence on the above subject ?

John NICHOLLS. reports; or references should be givento all the series of 73, Gresham-street, E.C., March 23. reports. Mr. Saunders in general appears to take neither

[The following is the correspondence referred to by of these courses, and does not usually refer to either the our correspondent :Law Reports or the WEEKLY REPORTER.

73, Gresham-street, London, March 19, 1881. E. W. Williamson, Esq., Secretary, Incorporated Law Society.

Dear Sir, — Will you kindly tell me why in this year's CORRESPONDENCE.

“Law List" there is no distinctive mark to show what

members of the profession are also members of the IncorpoSECOND MORTGAGES.

rated Law Society ?

John NICHOLLS. [To the Editor of the Solicitors' Journal.] Incorporated Law Society, U.K., Chancery-lane, London, Sir, I read the case referred to by your correspondent

March 23, 1881. at page 369, when reported, and I failed to understand

Dear Sir,--In reply to your letter of the 19th inst., I wby the judge should take it for granted that a mort

beg to inform you that it being thought desirable that an

accurate list of the members of ihe society shoald be pubgage ought to contain a clause requiring notice before lished, the council included one in the calendar issued in sale. No doubt the printed forms, and also mortgages January last, and in consequence the arrangement under prepared in conveyancers' chambers, do contain such a which the publishers of the "Law List" distinguished the clause, but the practice amongst solicitors is not uni members of the society was discontinued. form. I have prepared a large number of mortgages, I may mention that the calendar is published in January, first and second, without such a clause, and I know that whereas the “ Law List” does not come out until the the lithographed form of mortgage used in two

middle of March.-I am, dear Sir, yours faithfully, country offices, counties apart, does not contain such a

E. W. WILLIAMSON, Secretary. clause. Of the whole number of mortgages executed, by

John Nicholls, Esq., 73, Gresham.street, E.C. far the greater part are prepared by solicitors, and on a

73, Gresham-street, London, March 23, 1881. question of this sort their practice should be considered Dear Sir, I am obliged by your letter of this date. I in deciding what is usual. In 1840 the power of sale have never heard a suggestion that the “ Law List" was itself does not appear to have taken its place as a usual inaccurate in carrying out its mode of indicating, by an clause. When, therefore, did the notice clause become asterisk placed against the name of every member, who usual, and binding on solicitors to insert ? Perhaps soon were and who were not members of the Iocorporated Law after that date; and yet Mr. Davidson thought so little Society, and even admitting the desirability of printing & of the clause that in the first edition of his “ Concise separate correct list, such a compilation as the calendar, Conveyancing," published in 1845, he inserted, at page

issued for the first time this year, is valueless to the public 87, a note to the clause that “this proviso is in most

from its having no official authority, and being incomplete cases of little practical value, and may be omitted.”

as a list of practising solicitors by reason of its omitting This note is contained in the last edition of the work (the

all mention of those who are not members, or partners of eleventh), recently published. Mr. Davidson's opinion

members, of the society. on such a point is certainly not entitled to less weight

I may point out to you that the calendar can hardly claim than that of the judge who tried the case in question.

to be accurate, for it omits in its proper place, on the first

page of the “Local List of Members," the name of one who A SOLICITOR.

has an office at Aberdare.

I think the members generally ought to have been con. THE LEASES BILL.

| solted as to their wishes in the matter before it was [To the Editor of the Solicitors' Journal.]

decided to discontinue in the official“ Law List” an arrange.

ment which had worked satisfactorily for so many years, Sir,- I would venture, in spite of your apparent ap. and by which the publio generally, as well as the profesproval of the power to relieve against re-entry under sion, could see at a glance whether any solicitor was a power in lease (see p. 365), to remark that the remedy member of the society. may press unduly on ground landlords of large estates. As the subject appears to me to be of great interest to Each case would come before a different judge probably the profession, I propose to pablish the letters which have and the decision in one case would be no guide for the passed between us-Yours faithfully, :John NICHOLLS. landlord seeking to re-enter on a leasehold forming other

E. W. Williamson, Esq., Secretary, part of his estate. Such a Bill must ultimately reduce

Incorporated Law Society.] the value of ground-rents.

NEW ORDERS.

CASES OF THE WEEK..

HOUSE OF LORDS.

Court OF BANKRUPTCY-JURISDICTION-ISSUES OF FACE

-FRAUD-SPECIAL JURY-BANKRUPTCY Act, 1869, s. 70. STANDING ORDER, No. IV.

-In a case of E. parte Armitage, before the Court of On the 17th inst. the following alteration in the Appeal on the 10th inst., a question arose as to the proabove standing order was agreed to:-" That Standing | priety of the exercise of the extensive jurisdiction given to Order No. IV., applicable to appeals, be amended by the Court of Bankruptcy by section 72 of the Bankruptcy omitting all words from the word 'respondent' in line Act, 1869. The trustee in the liquidation of some woollen 20 to the end of the order, and inserting in lieu thereof

| merchants claimed to set aside as fraudulent some transfers the following words--viz., 'Ordered, that in tbe event of

of goods, worth more than £6,000, which the debtors had the Clerk of the Parliaments requiring a justification of

made shortly before the commencement of their liquidation. the sureties or substitute, the appellant's agent shall,

It was alleged that these transfers were made not in the ordi.

nary course of business, and at a time when the debtors were within one week from the date of an official notice to

insolvent, and that the transferees had full knowledge of him to that effect, lodge in the Parliament Office an

their circamstances. The trustee gave notice to the transaffidavit or affidavits by the proposed sureties or substi.

ferees of his intention to apply to the county court for tute setting forth specifically the nature of the property an order declaring the transfers in question void, and that the in consideration of which they claim to be accepted as transferees might be ordered to deliver the goods to the sureties in respect of the bond or as substitute in respect trustee or to pay the value of them. The trustee also gave of the recognizance, and also declaring that the property notice that he should apply to the court for a direction that in question is unincumbered; ordered, that in the event certain issues of fact relating to the transfers should be tried of such sureties not being deemed satisfactory by the

by a special jury. On the hearing of this application it was Clerk of the Parliaments, the appellant or appellants

contended on behalf of the transferees that the case was not shall, within four weeks from the date of an official

one in which the Court of Bankruptcy ought to exercise its notice by the Clerk of the Parliaments to that effect,

special jurisdiction under section 72, but that the questions at

issue ought to be tried in an action in the High Court. The pay into the account of the Fee Fund of the Houso of

judge of the county court ordered that the questions of fact Lords the sum of £200, to be subject to the order of the

should be tried by a jury in that court. Bacon, C.J., was House with regard to the costs of the appeal; and in

of opinion that it was not expedient that the county court the event of such substitute not being deemed satisfac. shoald exercise jurisdiction in the matter, and he discharged tory by the Clerk of the Parliaments, the appellant or the order. This decision was affirmed by the Court of appellants shall enter into the usual recognizance in Appeal (JAMES, Cotton, and Lush, L.JJ.). JAMES, L.J., person; ordered, that the said bond and the recognizance said that he did not wish to withdraw or to qualify what had (whether entered into by the appellants or by a substitute) | beer said in Ex parte Brown (27 W. R. 651, L. R. 11 be returned to the Parliament Office duly executed

Ch. D. 148), and other cases, to the effect that cases in which within one week from the date of the issue thereof to

under the bankruptcy law the title of the trustee was a the solicitor or agent of the appellant or appellants. On

peculiar one, distinct from that which he derived from the default by the appellant or appellants in complying with

bankrupt, should be tried in the Court of Bankruptcy. But

that only meant that such cases should be so tried cæteris the above conditions, the appeal to stand dismissed.'"

paribus. It was not intended to lay down an absolute rule That such cases should never be tried otherwise than in the

Court of Bankruptcy. The present case involved the right HIGH COURT OF JUSTICE.

to a sum of £6,000, and it involved the character of persons CHANCERY Division.-Order of Court.

who occupied a very respectable position. They desired that Wednesday, the 23rd day of March, 1881.

it should not be tried in the county court; they desired Whereas, the Honourable the Vice-Chancellor Sir

to have & special jury, which they could not have Richard Malins on the 19th day of March instant, re

in the county court; and they desired to have the

assistance of counsel, who did not practise in the county signed the office of judge of the High Court of Justice ;

court. Under the circumstances his lordship thought now I, the Right Honourable Roundell Baron Selborne,

it was expedient that the case should be tried in the High Lord High Chancellor of Great Britain, do hereby order and

Court, and not in the county court. Corrox, L.J., said that direct as follows: (1) That all causes and matters which on the trustee's own notice of motion showed that the case was the said 19th day of March instant were pending before not one which should be heard in the ordinary way. The the said Sir Richard Malins, and all causes and matters notice asked for a special jury. A special jury could not be by the order of court of the 2nd day of March instant had in the county court, but the notice showed that there transferred to the Honourable Sir Edward Fry, be and was something special in the case, and this justified the Chief stand transferred to the said Mr. Justice Fry, and shall

Judge in exercising his discretion by overruling the decision be marked with his name; (2) that the chief clerks and

of the county court judge. Ex parte Brown was not inother clerks attached to the chambers of the Vice-Chan

tended to lay down a hard-and-fast rule, but one which cellor Sir Richard Malins continue to perform the same

ought generally to be followed. LUSH, L.J., said that, con

sidering the large amount at stake, which was far beyond duties in relation to Mr. Justice Fry as those which they

the general jurisdiction of the county court, and the nature have hitherto performed for the said Vice-Chancellor ;

of the questions to be tried, which involved the honour and (3) That the order of court of June 19, 1877, be dis.

credibility of several persons, he thought it right that the charged, provided only that such of the several causes case should not be tried in the county court.-SOLICITORS, which have been transferred to the said Mr. Justice Fry | Peace & Co; Gush & Phillips. by the orders mentioned in the schedule hereto as have not been tried or heard, shall be deemed to have been BANKRUPT TRADER-Power OF CREDITORS TO AUtransferred to the said Mr. Justice Fry for the purpose | THORIZE TRUSTEE TO CARRY ON BUSINESS-BANKRUPTCY only of trial or hearing ; (4) that this order be entered Act, 1869, ss. 14, 20, 25.-In a case of Ex parte Emmanuel, with the registrar and set up in the courts and offices of before the Court of Appeal on the 17th inst., a question the Chancery Division,

arose as to the power of the creditors of a trader, who has been

adjudicated a bankrupt, or whose creditors have resolved on Schedule.

a liquidation by arrangement, to authorize the trustee in 14th February, 1879. I 24th February, 1880.

the bankruptcy or liquidation to carry on the business of

the bankrupt or debtor. Section 14 of the Bankruptcy Act, 30th October, 1879. 15th April, 1880.

1869, provides that “when an order has been made adjudg10th November, 1879. 6th August, 1880.

ing a debtor bankrupt, the property of the bankrupt shall 26th December, 1879. 3rd February, 1881. become divisible amongst his creditors in proportion to the 31st January, 1880.

debts proved by them in the bankruptcy; and for the SELBORNE, C. purpose of effecting such division the court shall, as soon *

[ocr errors]

may be, summon a general meeting of his creditors, and the | but it was not necessarily an unreasonable one. Brett, L.J., creditors assembled at such meeting sball and may do as was of opinion that the only power given to the creditors in follows (inter alia) : — (4) They may, by resolution, give | passing a resolution with regard to the carrying on of the directions as to the manner in which the property is to be bankrupt's business was to authorize the trustee to carry on administered by the trustee, and it shall be the duty of the the business to the same extent and for the same purpose as trustee to conform to such directions, unless the court for he could carry it on without any such authority. The some just cause otherwise orders." By section 20 “ the question to what extent it could be said that the creditors trustee shall, in the administration of the property of the had exceeded their authority was a difficult one. If they bankrupt, and in the distribution thereof amongst his credi. had acted within their authority, but in the opinion of the tors, have regard to any directions that may be given by court there bad been an erroneous exercise of the authority, resolution of the creditors at any general meeting.... his lordship doubted whether the court could interfere. But, Subject to the provisions of this Act, and to such directions if they had exceeded their power, he thought the court could as aforesaid, the trustee shall exercise his own discretion in interfere, If in terms the creditors had assumed to exceed their the management of the estate, and its distribution amongst powers, the case would be clear. But, if the resolation did not in the creditors. The trustee may from time to time summon terms assume to exceed the power of the creditors, the court general meetings of the creditors for the purpose of ascer must look at the facts, and must judge from them whether taiping their wishes." And section 25 provides that, the resolution was or was not intended to go beyond the "-subject to the provisions of this Act, the trustee shall have power of the creditors. In the present case if the first resolu. power to do the following things (inter alia) :-To carry tion had only authorized the carrying on of the business for on the business of the bankrupt so far as may be twelve months, bis lordship did not think it could be fairly necessary for the beneficial winding up of the same." | inferred that it was intended to carry it on further than for The creditors of a ginger beer manufacturer, who had filed the parpose of beneficially winding it up. But, when the a liquidation petition, on the 29th of July, 1879, resolved resolution went on to authorize the carrying on of the business, upon a liquidation of bis affairs by arrangement, and ap not only for twelve months, but for such further period or pointed three trustees. They also resolved “that the trus periods as the creditors might from time to time determine, tees shall be at liberty to carry on tbe business of the debtor and this was afterwards carried out by another resolution, for a period of twelve months, and for such further period authorizing the carrying on of the business for a further or periods from time to time as the creditors in general meet- period of fifteen months, the only proper inference was that, ing shall determine." In accordance with the resolution the when the creditors passed the first resolution, they did so, not trustees carried on the business, and in November, 1879, for the purpose of the beneficial winding up of the business, they paid a first dividend to the creditors. On the 10th of but intended to authorize the trustee to carry it on for a August, 1880, another general meeting of the creditors was further and different purpose. Consequently the resolutionsheld, and it was resolved “that the trustees shall continue were such as it was beyond the power of the majority of the to carry on the business for a further period of fifteen months

creditors to pass so as to bind the dissentient minority, and as from the 29th of July last." A dissentient creditor ap. they ought to be set aside. COTTON, L.J., said that the plied to the court for an order declaring that so much of object of the Legislature in a bankruptcy was shown by the the resolutions as purported to authorize the trustees to carry introductory part of section 14-viz., the division of the on the business of the debtor was ultrà vires, and not bind bankrupt's property among his creditors in proportion to the ing on the applicant. It appeared by the evidence of one debts proved by them in the bankruptcy, and then section 25 of the trustees that the reason for carrying on the business said what the trustee was to have power to do, and it for a further period of fifteen months was this, that the busi. authorized him (assuming, in so doiog, that he would not ness was for a season only—.e., from April to October, otherwise have had the power) to carry on the bankrupt's the months of August and September being the best months business “so far as may be necessary for the beneficial for business and profits in the season, and the trustee said winding up of the same." It was for the purpose of winding that, if the accounts were made up in the month of July, up of the business, not the estate. Then sub-section 6 of the which was near the middle of the season, a proper state of same section empowered the trustee to sell all the property the trading could not be shown. Therefore the creditors of the bankrupt, including the goodwill of his business, resolved to give the trustee a full season's trading-viz., showing that, subject to the qualification contained in fifteen months from the 29th of July, 1880. The trustee sub-section 2, the intention was that, when the bankrupt was added that, at the meeting on the 10th of August, 1880, carrying on a business, there should, as soon as possible, bea, the propriety of immediately selling the business sale of it. The contention was that the creditors in general was fully discussed, and, it being considered by the creditors | meeting had a larger power than the trustee. But, according that there would be a difficulty in disposing of the business to section 14, a general meeting of the creditors was to be on advantageous terms, the majority thought it would be summoned as soon as might be after the adjudication for the most beneficial for the winding up of the estate that the purpose of effecting a division of the bankrupt's property, and business should be continued for another full season. The then by sub-section 4 of the same section, the creditors might court (JAMES, BRETT, and COTTON, L.JJ.) held that the give directions as to the manner in which the property was to creditors had exceeded their power, and that the resolution be administered by the trustee. It was said that this enlarged of the 10th of August, 1880, and the latter part of the the power of carrying on the business. In the first place, the resolution of the 29th of July, 1879, were ultrà vires words “the property is to be administered” could hardly be and invalid as against the dissenting creditors. JAMES, construed in that way. And, moreover, the whole of section L.J., said tbat the Act authorized a carrying on of the 14 was qualified by the introductory words, “ for tbe purpose business only for the purpose of a beneficial winding up of of effecting such division." Section 20, too, had an important the business, not because the creditors might think that' the bearing on the question. The trustee, in the administration business would be a very profitable one. That was not the of the property and its distribution among the creditors, was kind of thing which the majority of the creditors had a right to bave regard to any directions given by the creditors, but, to impose on the minority. Every creditor had a right to subject to the provisions of the Act, and to those directions, he say, I want to have the estate administered, and the power was to exercise his own discretion in the management of the of carrying on the business with the view of winding it up estate and its distribution. When the creditors had given beneficially was given only for the purpose of the administra him directions, the trustee was still to exercise his own distion and distribution of the estate. It was quite clear that cretion. In bia lordship's opinion the creditors had no greater it was never intended by the Act that the trustee should power to authorize the carrying on of the bankrupt's business carry on the business indefinitely, with the view of making than the trustee bad under section 25. And, having regard profit by it as a going concern. The affidavit of the trustee to the nature of the business in the present case, his lordsbip sbowed tbat the business was not being carried on with a view thought the resolutions showed that the intention of the to its winding up. The creditors bad not contemplated a sale creditors was to carry it on, not for the purpose of a beneficial of the business, but they thought they would make more winding up, but for another purpose, and the affidavit of the profit by carrying it on. The second resolution was clearly trastee showed that the purpose was to make a profit during ultrà vires, and the latter part of the first resolution was alsс the drinking season of the year. This was not a purpose ultrà vires. It might very well be said that the resolution to which was justified by the Act, and it was the duty of the carry on the business for twelve months was in spirit a compli court to say that it was ultrà vires, and that the resolutions ance with the Act, and it might well have been understood by all could not stand.-SOLICITORS, Harper, Broad, d Battcock ; the creditors to have been passed with a view to the beneficial G. J. Jennings. winding up of the business. Twelve months was a long time,

Co.SCRETIES-CONTRIBUTION.-In a case of Ex parte creditor. COTTON, L.J., concurred.-SOLICITORS, Willoughby Snowdon, before the Court of Appeal on the 17th inst., a & Cox; Linklater, Hackwood f Co. question arose as to the right of contribution between cosureties- viz., whether the right to call for contribution arises as soon as one of the sureties has paid & part of

LUNATIC Trustee - MORTGAGE — VESTING ORDERthe debt which is due froin the principal debtor to the

TRUSTEE Act, 1850, s. 3-EVIDENCE. In a case of In re creditor, or not until the surety has paid more than

Ireland, before Cotton, L.J., in lunacy, on the 19th inst., a his proportion of the debt. A customer of a bank had question arose as to the making of a vesting order under the joined with two sureties in giving a joint and several bond

Trustee Act, 1850. In December, 1872, the three trustees to the bank, as security for any moneys owing from time

of a will advanced £1,000, part of the trust moneys, on a to time by the customer to the bank. The bond ex

mortgage of real estate, the estate being demised to pressly limited the liability of the sureties to £1,000 for them by the mortgagor for a term of 999 years at a pepper. principal, in addition to interest, costs, and commission.

corn rent. In 1874 one of the trustees died. In 1878, the The customer filed a liquidation petition, and when he did so mortgagor paid off the mortgage debt, but the estate was he owed the bank £1,000 for advances, and also some not re-assigned or surrendered to him. In February, 1880, interest and commission. The bank called on one of the

one of the two surviving trustees was found a lunatic. sureties to pay half the sum which was due to them, but Afterwards, upon a petition presented in lunacy and in the made do demand on the other surety, though it did not Chancery Division, two new trustees of the will were appear that they had released him. The surety who was appointed in the place of the deceased trustee and the called on to pay paid the sun demanded and presented a

lunatic trustee. The present petition was presented by tbe bankruptcy petition against his co-surety, alleging as a debt

committee of the lunatic's estate and the two new trustees, due to him from the co-surety half the amount which he asking for an order vesting the mortgaged estate in the himself had paid to the bank, and the registrar adjudi. mortgagor. COTTON, L.J., felt some difficulty at first about cated the co-surety a bankrupt. On the appeal it was ad.

the jurisdiction, but ultimately made the order, considering mitted that tbe legal right of a surety to contribution was

that he had power to do so under section 3 of the Act. Aod, correctly laid down in Davies v. Humphreys (6 M. & W. 153), to save expense, he allowed the petitioner to use the where Parke, B., said (p. 168), “The right” (of contri evidence which had been filed upon the former petition for bution) “is founded not originally upon contract, but upon

the appointment of the new trustees.-SOLICITORS, Gush & a principle of equity. .. What, then, is the nature of

Phillips. the equity upon which the right of aetion depends ? Is it that when one surety bas paid any part of the debt, he PRESCRIPTION-PROFIT A PRENDRE IN ALIENO SOLOshall have a right to call on his co-gurety or co-sureties | RIGHT TO CUT LITTER FROM COMMON-PRESCRIPTION Act to bear a proportion of the burthea, or that, when he (2 & 3 WILL. 4, c. 71), s. 1.-In a case of Earl De La Warr has paid more tban his share he shall have a right v. Miles, before the Court of Appeal on the 21st ingt., a ques. to be reimbursed whatever he has paid beyond tion arose as to the effect of the Prescription Act with it? or must the whole of the debt be paid by him, reference to a claim of a profit à prendre in alieno solo. The or someone liable, before he has a right to sue for contri- | action was brought by the owner of the soil of a forest, bution at all? We are not without authority on this sub wbich was subject to certain rights of common, to restrain ject, and it is in favonr of the second of these pro. | the defendant from cutting and carrying away brakes, fern, , positions." And Parke, B., referred to Ex parte Gifford heather, and litter from the forest. In the year 1691 a suit (6 Ves. 805), in which Lord Eldon said (p. 808), that had been instituted by the then owners of the soil of the co-sureties "stand with regard to each other in a relation | forest against the commoners to determine how much of the which gives rise to this right among others, that, if one pays forest might properly be inclosed, having regard to the more than his proportion, there shall be a contribution for a rights of common, and in 1693 a decree was made in that proportion of the excess beyond the proportion which in all suit by which portions of the forest were allotted to the events he is to pay." And Parke, B., added (p. 169), “ Un. owners of the soil for inclosure, free from rights of common, , til the one has paid more than his proportion, either of the and the rest of the forest was allotted to remain open whole debt, or of that part of the debt which remains un- and uninclosed, subjeot to certain specified rights of common paid by the principal, it is not clear that he ever will be in favour of the commoners. The defendant in Earl De La entitled to demand anything from the other; and before Warr v. Miles was a commoner in respect of a tenement to that he has no equity to receive a contribution, and conse. | wbich he derived title through one of the defendants to the quently no right of action which is founded on the equity suit of 1691. By his statement of defence he claimed receive it... It would tend to multiplicity of suits, to be entitled under the decree of 1693, with the and to a great inconvenience, if each surety might sue all other commoners, to the ownership of the brakes, fero,, the others for a rateable proportion of what he had paid, the heather, and litter growing on the portion of the instant he had paid any part of the debt." But it was forest which was allotted to the commoners, in exclusion of contended that courts of equity acted on a different prin. the owner of the soil. The defendant also claimed, in the alterciple, and that this appeared from Craythorne v. native, that he and his predecessors in title, owners of the same Swinburne (14 Ves. 160), in which Lord Eldon said (p. 164), tenement, and the several occupiers of tbe tenement from " It has long been settled that, if there are co-sareties by time to time, bad actually taken and enjoyed as of right in the same instrument, and the creditor calls upon either of respect of the tenement, without interruption, for the full periods them to pay the principal debt, or any part of it, that of thirty years and sixty years, respectively, preceding the surety has a right in this court, either upon a principle of commencement of the action, the right of cutting and equity, or npon contract, to call upon his co-surety for contri-| carrying away brakes, fern, heather, and litter from the : bation.” The Court of Appeal (JAMES, BRETT, and COTTON, 1 portion of the forest allotted to the commoners, sufficient : L.JJ.), however, held that there was not a good petitioning for the manurage, improvement, maintenance, sustaining, , creditor's debt, and annulled the adjudication. JAMES, L.J. / repairing, and amending the tenement. The plaintiff by said that there was no debt either at law or in equity. Co his reply pleaded that the defendant's two claims the claim sureties were bound to bear the whole burden equally. If to a share in the ownership of the brakes, &c., and the clajm one surety had paid a part of the debt for which they were to a prescriptive right of profit à prendre in respect of his all jointly liable, it was impossible to say till the whole was tonement — were inconsistent with each other, and that paid that there was any ascertained debt which could be the defendant ought to rely on one or the other of the two made the foundation of proceedings in bankruptcy. In claims, and not upon both at the same time. And the plain. · sach a case as the present his lordship thought the proper tiff said that the purposes for which the prescriptive right course would be to bring an action against the co-surety to was claimed were so unlimited and uncertain, and so destruc- compel him to contribute to pay the debt to the creditor. tive of the common allotment over which they were claimed, But until the one surety had paid more than, as between that they could not be properly claimed under a prescriptive himself and his co-surety, he could be called on to pay, no title. Bacon, V.C., held, upon the construction of the equity arose between them. BRETT, L.J., said that the decree of 1693, that it did not give the commoners the rule was distinctly laid down in Davies v. Humphreys, ownership of the brakes, &c., but that their right under it which had never since been questioned, and it was founded was limited to common of pasturage and herbage, and he upon Ex parte Gifford. Craythorne v. Swinburne did not held that the alternative claim of a right by prescription was conflict. A surety had no claim against his co-surety till he inconsistent and could not be maintained, and, indeed, he was had paid more than his proportion of the debt due to the lof opinion that the claim of a profit à prendre aliwn

[ocr errors]
« PreviousContinue »