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■ the proviso for re-entry with reference to theae covenants is sometimes used as a means of extorting money, and we should have thought that the court might be trusted so to use its power of relieving against forfeiture as not to defeat the proper object of the covenant, which is to secure to the lessor satisfactory and responsible occupants of the premises. The operation of the relief clause is also denied to conditions for forfeiture on bankruptcy, or taking in execution, and, in the case of a mining lease, to the breach of a covenant or condition for allowing the lessor to have access to or inspect books,
■ &c, or to enter or inspeot the mine or workings. The law relating to re-entry or forfeiture or relief in case of non-payment of rent, is not to be affected by the new provision.
Of course, if the provisions above mentioned became law, the sections of Lord St. Leonards' Act, and section 2 of the Common Law Procedure Act, 1860, relating to relief against forfeiture for breach of covenants to insure, will become unnecessary, and it is proposed to repeal them.
ALTERNATIVE RELIEF. By ALBERT GORDON Langley,
We cannot say we think that this essay was worth publishing. It seems to us that the author has chosen an almost impossible subject. He has perhaps succeeded as well as was possible, but, in our opinion, no great measure of success was to be hoped for. The essay is little more than a string of cases hung together by the slenderest threads, and in some cases by no perceptible threads at all. Some matters are hardly capable of being reduced to rules or propositions. Cases often occur no doubt, both in pleading and in the conduct of business in court, when a question arises as to the expediency of putting forward alternative cases, and as to the best way of shaping such alternatives ; but in the nature of things these questions are not soluble according to any fixed rules or doctrines. The data for their solution vary indefinitely according to the facts of each case. The only rules that can be laid down on such a subject are so obvious that they are not worth while enunciating as scientific propositions.
Let us take, for example, some of the rules that in conclusion the author deduces from the authorities. The first is that, "subject to certain regulations, alternative relief may be asked, and several causes of action may be joined, in the same statement of claim." This, as we understand them, the rules say in so many words. The third is that "the same rules of pleading which prevailed under the old law prevail now, unless there is anything in the Judicature Act or in the orders or rules which prevents it." Similarly, it needed no magician to tell us that. From this last proposition the author deduces—(1)" A plaintiff must recover secundum allegata el j/robata, particularly in cases of fraud." (2) He may not " hover between two inconsistent alternatives not distinctly averring either." (3) "He may always state the actual facts, and ask the court to draw one conclusion of law from them or another, even although the conclusions might be inconsistent," and various other similar propositions. These supposed rules or propositions are obviously mere truisms, yet for each of them cases are cited, all the somewhat complicated facts of these cases being given, and copious extracts from the judgments. Remarks that in a judgment are very appropiate as showing the grounds on which the judge is deciding the particular case, are mere twaddle when they are solemnly reported and afterwards inserted in a treatise as the enunciations of novel ■and important propositions. There are many very
well known, and indeed obvious, principles or propositions of law and reason which a judge frequently expresses in the course of a judgment, proceeding then to show how the facts of the case bring it within such and such a principle or proposition. The interest oi'-value of the decision as a precedent, if any, lies in the illustration which the facts afford of the application of the principle; but there are many principles of such general and various application that their application does not afford fitting subjects for reports or legal treatises. We have often observed with regret how prevalent the tendency is to report cases which, for the reasons above given, are not worth reporting; and we observe with similar regret the tendency to manufacture treatises by stringing together long extracts from the judgments in such cases.
We are sorry to speak in other than favourable terms of this essay, but we do not attribute any blame to the author except in the choice of his subject. We believe he has done his best with his materials. We do not think the work could be better done, but we do not think it can be 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 treatise out of impossible materials, the result cannot be successful, whatever the author's talent or painstaking.
INTERPLEADER AND ATTACHMENT
Interpleader And Attachment Of Debts. By Michael
MAGISTERIAL SYNOPSIS. Oke's Magisterial Synopsis: A Practical Guide For Magistrates, Their Clerks, Solicitous, And ConStables, &c. Thirteenth Edition. By Thomas William Saunders, Esq., Barrister-at-Law, Metropolitan Police Magistrate. Two volumes. Butterworths. The passing of the Summary Jurisdiction Act, 1879, adds considerable interest to the new edition of this standard book. Mr. Saunders, who has already dealt ■with the Act in a separate work, has inserted its provisions in the appropriate places, and has prefixed to the synopsis of offences a salutary caution to magistrates' clerks to bear in mind the discretionary power conferred by the Act to mitigate or alter the incidents of imprisonment or fine. We can only hope that justices and their clerks will follow Mr. Saunders' advice, and " commit to memory their discretionary powers, so as to be perfectly familiar with them, with a view to their adoption when such a course may be deemed desirable." We should have thought it would have been better, however, in addition to this caution, to insert at the head of each of the columns of the synopsis rolating to the penalty the words " See S. J. Act, ss.4—8." The other Acts relating to the criminal law which have been passed since the last edition are duly noted up, and we have not missed any decisions, but we must protest against the imperfect references which are given to the different series of current reports. In a work of this kind the references should either be to the so-called authorized reports, with a table prefixed enabling the reader to find for himself the corresponding volume in all the other series of reports; or references should be givento all the series of reports. Mr. Saunders in general appears to take neither of these courses, and does not usually refer to either the Law Heports or the Weekly Reporter.
"SECOND MORTGAGES. [To the Editor of the Solicitors' Journal.] Sir,—I read the case referred to by your correspondent at page 369, when reported, and I failed to understand why the judge should take it for granted that a mortgage ought to contain a clause requiring notice beforo sale. No doubt the printed forms, and also mortgages prepared in conveyancers' chambers, do contain such a clause, but the practice amongst solicitors is not uniform. I have prepared a large number of mortgages, first and second, without such a clause, and I know that the lithographed form of mortgage used in two country offices, counties apart, does not contain such a clause. Of the whole number of mortgages executed, by far the greater part are prepared by solicitors, and on a question of this sort their practice should be considered in deciding what is usual. In 1840 the power of sale itself does not appear to have taken its place as a usual clause. When, therefore, did the notice clause become usual, and binding on solicitors to insert P Perhaps soon after that date ; and yet Mr. Davidson thought so little of the clause that in the first edition of his "Concise Conveyancing," published in 1845, he inserted, at page 87, a note to the clause that "this proviso is in most cases of little practical value, and may be omitted." This note is contained in the last edition of the work (the eloventh), recently published. Mr. Davidson's opinion on such a point is certainly not entitled to less weight than that of the judge who tried the case in question.
THE LEASES BILL. [To the Editor of the Solicitors' Journal.] Sir,—I would venture, in spite of your apparent approval of the power to relieve against re-entry under power in lease (see p. 365), to remark that the remedy may press unduly on ground landlords of large estates. Each case would come before a different judge probably, and the decision in one cose would be no guide for the landlord seeking to re-enter on a leasehold forming other part of his estate. Such u Bill must ultimately reduce the value of ground-rents.
As those who support such a Bill do not seem to valueas highly as others the right of contracting parties, could they not go a step further and declare that when a plot subject to rent has been divided, the rent owner shall only recover out of each part its proportion of the rent? This would remove an objection to many titles. A Country Solicitor.
[We said that Mr. Davey's Bill was the best that bad yet been introduced in the House of Commons, but we have always disapproved of the proposed mode of meeting tho difficulty by leaving the question of relief to the discretion of the judge. This, however, appears to be the only plan which finds favour in the eyes of our legislators, and the need of some remedy is so great that we should be glad to see a Bill in this shape passed into law. —ed. S.J.]
THE INCORPORATED LAW SOCIETY AND THE. "LAW LIST."
[To the Editor of the Solicitors' Journal.] Sir,—Can you find space for the enclosed correspond* ence on the above subject? John Nicholls.
73, Grcsham-street, E.C., March 23.
[The following is the correspondence referred to by our correspondent:—
73, Gresham-street, Loudon, March 19, 188L. E. W. Williamson, Esq., Secretary, Incorporated Law Society. Dear Sir,—Will you kindly tell me why in this year's* "Law List" there is no distinctive mark to show what members of the profession are also members of the Incorporated Law Society? John Nicholls.
Incorporated Law Society, TJ.K., Chancery-lane, London, March 23, 1881.
Dear Sir,—In reply to yonr letter of the 19th inst., I beg to inform you that it being thought desirable that an accurate list of the members of the society should be published, the council included ono in the calendar issued in January last, and in consequence the arrangement under which the publishers of the "Law List" distinguished the members of the society was discontinued.
I may mention that the calendar is published in January,, whereas the "Law List" does not oome out until the middle of March.—I am, dear Sir, yours faithfully,
E. W. Williamson, Secretary.
John Nicholls, Esq., 73, Gresham-street, E.C.
73, Gresham-street, London, Maroh 23, 1881.
Dear Sir,—I am obliged by yonr letter of this date. I have never heard a suggestion that the "Law List" was inaocnrate in carrying out its mode of indicating, by an asterisk placed against the name of every member, who were and who were not members of the Incorporated Law Society, and even admitting the desirability of printing a separate oorrect list, such a compilation as the calendar, issued for tbe first time this year, is valueless to the publio from its having no official authority, and being incomplete as a list of practising solicitors by reason of its omitting1 all mention of those who are not members, or partners of members, of the society.
I may point ont to you that the calendar oan hardly claim 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 has an office at Aberdare.
I think the members generally ought to have been consulted as to their wishes in the matter before it was decided todisoontinueintbe official" Law List" an arrangement which had worked satisfactorily for so many years, and by which the publio generally, as well as the profession, conld see at a glanoe whether any solicitor was a member of tbe sooiety.
As the Bubject appears to me to be of great interest tc the profession, I propose to publish the lettera whioh have, passed between us—Yours faithfully, ;John Nicholls
E. W. Williamson, Esq., Secretary,
HOUSE OF LORDS. Standing Order, No. IV. On the 17th inst. the following alteration in the above standing order was agreed to:—" That Standing •Order No. IV., applicable to appeals, be amended by emitting all words from the word 'respondent' inline 20 to the end of the order, and inserting in lieu thereof 'the following words—viz., 'Ordered, that in the event of ■the Clerk of the Parliaments requiring a justification of the sureties or substitute, the appellant's agent shall, "within one week from the date of an official notice to him to that effect, lodge in the Parliament Office an affidavit or affidavits by the proposed sureties or substitute setting forth specifically the nature of the property in consideration of which they claim to be accepted as sureties in respect of the bond or as substitute in respect of the recognizance, and also declaring that the property in question is unincumbered; ordered, that iu the event of such sureties not being deemed satisfactory by the Clerk of the Parliaments, the appellant or appellants shall, within four weeks from the date of an official notice by the Clerk of the Parliaments to that effect, pay into the accouut of the Fee Fund of the Houso of Lords the sum of £200, to be subject to the order of the House with regard to the costs of the appeal; aud in the event of such substitute not being deemed satisfactory by the Clerk of the Parliaments, the appellant or appellants shall enter into the usual recognizance in person; ordered, that the said bond and the recognizance (whether entered into by the appellants or by a substitute) be returned to the Parliament Office duly executed within one week from the date of the issue thereof to the solicitor or agent of the appellant or appellants. Ou default by the appellant or appellants in complying with the above conditions, the appeal to stand dismissed.'"
HIGH COURT OF JUSTICE.
Wednesday, the 23rd day of March, 1881. Whereas, the Honourable the Vice-Chancellor Sir 'Richard Malins on the 19th day of March instant, resigned the office of judge of the High Court of Justice; now I, the Right Honourable Roundell Baron Selborne, Lord High Chancellor of Great Britain, do hereby order and direct as follows: (1) That all causes and matters which on the said 19th day of March instant were pending before the said Sir Richard Malins, and all causes and matters by the order of court of the 2nd day of March instant transferred to the Honourable Sir Edward Fry, be and stand transferred to the said Mr. Justice Fry, and shall be marked with his name; (2) that the chief clerks and other clerks attacked to the chambers of the Vice-Chancellor Sir Richard Malins continue to perform the same -duties in relation to Mr. Justice Fry as those which they have hitherto performed for the said Vice-Chancellor; (3) That the order of court of June 19, 1877, be discharged, provided only that such of the several causes which have been transferred to the said Mr. Justice Fry by the orders mentioned in the schedule hereto as have not been tried or heard, shall be deemed to have been transferred to the said Mr. Justice Fry for the purpose only of trial or hearing; (4) that this order be entered with the registrar and set up in the courts and offices of -the Chancery Division.
CASES OF THE WEEK. .
Codet Op Bankruptcy—Jurisdiction—Issues Op Fact —Fraud—Special Jury—Bankruptcy Act, 1869, s. 72. —In a case of Ex parte Armilage, before the Court of Appeal on the 10th inst., a question arose as to the propriety of the exercise of the extensive jurisdiction given to the Court of Bankruptcy by section 72 of the Bankruptcy Act, 18C9. The trustee in the liquidation of some woollen merchants claimed to set aside as fraudulent soma transfers of goods, worth more than £6,000, which the debtors had made shortly before the commencement of their liquidation. It was alleged that these transfers were made not in the ordinary course of business, and at a time when tbe debtors were insolvent, and that the transferees bad full knowledge of their ciroomstances. The trustee gave notice to the transferees of his intention to apply to the county court for an order declaring the transfers in question void, and that the transferees might be ordered to deliver the goods to the trustee or to pay the value of them. The trustee also gave notice that he should apply to the court for a direction thai certain issues of fact relating to the transfers should be tried by a special jury. On the hearing of this application it Was contended on behulf of the transferees that the case was not one in which the Court of Bankruptcy ought to exercise its special jurisdiction under section 72, but that the questions at issue ought to be tried iu an action in the High Court. The judge of tbe county court ordered that the questions of fact should be tried by a jury in that court. Bacon, C.J., was of opinion that it was not expedient that the county court should exercise jurisdiction in the matter, and he discharged the order. This decision was affirmed by the Court of Appeal (james, Cotton, and Lush, L.JJ.). James, L.J., said that he did not wish to withdraw or to qualify what had beep said in Ex parte Brown (27 W. B. 651, L. R. 11 Ch. D. 14S), and other cases, to the effect that cases in which under the bankruptcy law the title of the trustee was a peculiar one, distinct from that which he derived from the bankrupt, should be tried in the Conrt of Bankruptcy. But that only meant that such cases should be s i tried casleris paribus. It was not intended to lay down an absolute rale that such cases should never be tried otherwise than in the Court of Bankruptcy. The present case involved the right to a sum of £6,000, and it involved the character of persons who occupied a very respectable position. They desired that it should not be tried in the county court; they desired to have a special jury, which they could not have in the county court; and they desired to have the assistance of counsel, who did not practise in the county court. Under tbe circumstances his lordship thought it was expedient that the case should be tried in the High Court, and not in the county court. Cotton*, L.J., said that the trustee's own notice of motion showed that the case was not one which shonld be heard iu the ordinary way. The notice asked for a special jury. A special jury could not be had in the county court, but the notice showed that there was something special in the case, and this justified the Chief Judge in exercising his discretion by overruling the decision of the connty court judge. Ex parte Brown was not intended to lay down a hard-and-fast rule, but one which ought generally to be followed. Lush, L.J., said that, considering the large amount at stake, which was far beyond the general jurisdiction of the county court, and the nature of the questions to be tried, which involved the honour and credibility of several persons, he thought it right that the ease should not bo tried in the connty court—Solicitors, Peace <fc Co; Qmh PhUUpt.
Bankrupt Trader—Power Of Creditors To AuThorize Trustee To Carry On Business—Bankruptcy Act, 1869, as. 14, 20, 25.—In a case of Ex parte Emmanuel, before the Court of Appeal on tho 17th inst., a question arose as to the power of the creditors of a trader, who has been adjudicated a bankrupt, or whose creditors have resolved on a liquidation by arrangement, to authorize the trustee in the bankruptcy or liquidation to carry on the business of the bankrupt or debtor. Section 14 of tbe Bankruptcy Act, 1869, provides that "when an order has been made adjudging a debtor bankrupt, the property of the bankrupt shall become divisible amongst his creditors in proportion to the debts proved by them in the bankruptcy; and for the purpose of effecting such division the court shall, as soon.»
may be, aumtuon a general meeting of Ms creditors, and tie creditors assembled at such meeting shall and may do as follows (inter alia) : — (4) They may, by resolution, give directions as to the manner in which the property is to be administered by the trustee, an^l it shall be the duty of the trustee to conform to such directions, unless the court for some just cause otherwise orders." By seotion 20 "the trustee shall, in the administration of the property of the bankrupt, and in the distribution thereof amongst his creditors, have regard to any directions that may be givea by resolution of the creditors at any general meeting. . . . Subject to the provisions of thi- Act, and to such directions as aforesaid, the truste3 shall exercise his own discretion in the management of the estate, and its distribution amongst the creditors. The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes." And sec ion 25 provides that, "subject to the provisions of this Act, the trustee shall have power to do the following things (inter alia) :—To carry on the business of the bankrupt so far as may be necessary for the beneficial winding up of the same." The creditors of a ginger beer manufacturer, who had filed aliquidaiion petition, on the 29ih of July, 1879, resolved upon a liquidation of bis affairs by arrangement, and appointed three trustees. They also resolved " that the trustees shall be at liberty to carry on tbe business of the debtor for a period of twelve months, end for such further period or periods from time to time as the creditors in general meeting shall determine." In accordance with the resolution the trustees carried on the business, and in November, 1879, they paid a first dividend to the creditors. On the 10th of August, 1880, another general meeting of the creditors was held, and it was resolved "that the trustees shall continue to carry on the business for a further period of fifteen months as from the 29th of July last." A dissentient creditor applied to the court for an order deolaring that so much of the resolutions as purported to authorize the trustees to carry on the business of the debtor was ultra vires, and not binding on tbe applicant. It appeared by the evidence of one of the trustees that the reason for carrying on the business for a further period of fifteen months was this, that the business was for a season only—i.e, from April to October— the months of August and September being the best months for business and profits in the season, and the trustee said that, if the accounts were made up in the month of July, which was near the middle of the season, a proper state of the trading could not be shown. Therefore the creditors resolved to give tbe trustee a full season's trading—viz., fifteen months from the 29th of July, 1880. The trustee added that, at the meeting on the 10th of August, 1880, tbe propriety of immediately selling tbe business was fully discusBed, and, it being considered by the creditors that there would be a difficulty in disposing of the business on [advantageous terms, the majority thought it would be most beneficial for tho winding up of the estate that the business should be continued for another full season. The court (james, Brett, and Cotton, Ij.jj.) held that the creditors had exceeded their power, and that the resolution of the 10th of August, 1880, and the latter part of the resolution of the 29th of July, 1879, were ultra vires and invalid as against tho dissenting creditors. James, L.J., said that tfie Act authorized a carrying on of the business only for tho purpose of a beneficial wiuding up of the business, not because the creditors might think that tbe business would be a very profitable one. That was not the kind of thing which the majority of the creditors had a right to impose on the minority. Every creditor had a right to say, I want to have the estate administered, and the power of carrying on the business with the view of winding it up beneficially was given only for the purpose of the administration and distribution of the estate. It was qnite clear that it was never iotended by the Act tbat the truBtee should carry on the business indefinitely, with the view of making profit by it as a going concern. The affidavit of the trustee showed that the business was not being carried on with a view to its winding up. The creditors had not contemplated a sale of tbe business, but they thought they would make more profit hy carrying it on. The second resolution was clearly ultra virei, and the latter part of the first resolution was also ultra vine. It might very well be said that the resolution to carry on the busiuess for twelve months was in spirit a compliance with the Act, and it might well havobeeu understood by nil the creditors to have been passed with a view to the beneficial winding up of the bubiuosE. Twelve months was a long time,
but it was not necessarily an unreasonable one. Brett, L.J.,, was of opinion that the only power given to the creditor! inpassing a resolution with regard to the carrying on of the bankrupt's business was to authorize the trustee to carry on., the business to the same extent and for the same purpose as he could carry it on without any such authority. The . question to what extent it could be said that the creditors had exceeded their authority was a difficult one. If they had acted within their authority, but in tbe opinion of thecourt there had been an erroneous exercise of the authority, his lordship doubted whether the court could interfere. But, if they had exceeded their power, he thought the oourt could interfere. If in terms the creditors bad assumed to exceed their powers, theoasewouldbeclear. But, if theresolntiondidnot in. terms assume to exceed the power of the creditors, the court must look at the facts, and must judge from them whether the resolution was or was not intended to go beyond the power of the creditors. In the present case if the first resolution had only authorized the carrying on of the business for twelve months, bis lordship did not think it could be fairlyinferred that it was intended to carry it on further than for the purpose of beneficially winding it up. But, when the resolution went on to authorize the carrying on of tbe business, not only for twelve months, but for such further period or periods as the creditors might from time to time determine,, and this was afterwards carried out by another resolution, authorizing the carrying on of the business for a further period of fifteen months, the only proper inference was that, when the creditors passed tbe first resolution, they did so, not for the purpose of the beneficial winding up of the business, but intended to authorize the trustee to carry it on for a further and different purpose. Consequently the resolutions were such as it was beyond the power of the majority of the creditors to pass so as to bind the dissentient minority, and they ought'to be set aside. Cotton, L.J., said that the objoot of the Legislature in a bankruptcy was shown by the introductory part of section 14—viz., the division of the bankrupt's property among his creditors in proportion to the debts proved by them in tbe bankruptcy, and then section 25 said what the trustee was to have power to do, and it authorized him (assuming, in so doing, that he would not otherwise have had the power) to carry on tbe bankrupt's business "so far as may be necessary for the beneficial winding up of the same." It was for the purpose of winding; up of the business, not the estate. Then sub-section 6 of the same section empowered the trustee to sell all the property of the bankrupt, including the goodwill of his business, showing that, subject to the qualification contained in sub-section 2, the intention was that, when the bankrupt was carrying on a business, there should, as soon as possible, be a sale of it. The contention was tbat tbe creditors in general meeting had a larger power than the trustee. But, according to section 14, a general meeting of the creditors was to be summoned as soon as might be after the adjudication for tbe purpose of effecting a division of the bankrupt's property, and. then by sub-section 4 of the same section, the creditors might give directions as to the manner in which the property was to be administered by the trustee. It was said tbat this enlarged the power of carrying on tbe business. In the first place, the< words "the property is to be administered" oould hardly be construed in that way. And, moreover, tbe whole of section. 14 was qualified by the introductory words, "for tbe purpose of effecting such division." Section 20, too, had an important bearing on the question. The trustee, in the administration of tbe property and its distribution among the creditors, waste have regard to any directions given by the creditors, but, subject to the provisions of the Act, and to those directions, he was to exercise bis own discretion in the management of the estate and its distribution. When the creditors had given, him directions, the trustee was still to exercise his own discretion. In bis lordship's opinion tbe creditors had no greater power to authorize the carrying on of tbe bankrupt's business than the trustee bad under section 25. And, having regard to the nature of the business in the present case, his lordship thought the resolutions showed that the intention of the creditors was to carry it on, not for the purpose of a beneficial J winding up, but for another purpose, and the affidavit of the trustee showed that the purpose was to make a profit during the drinking season of the year. This was not a purpose which was justified by the Act, and it was the duty of the court to say that it was ultra vires, and tbat the resolutions could not stand.—Solicitous, Harper, Broad, <fc G. /. Jennings.
Co.screties—Contribution.—In a case of Ex parts Snowdon, before the Court of Appeal on the 17th inBt., a 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 a part of the debt which is due from the principal debtor to (he creditor, or not until the surety has paid more than his proportion of the debt. A customer of a bank had joined with two sureties in giving a joint and several bond to the bank, as security for any moneys owing from time to time by the customer to the bunk. The bond expressly limited the liability of the sureties to £1,000 for principal, in addition to interest, costs, and commission. The customer filed a liquidation petition, and when he did so he owed the bank JE 1,000 for advances, and also some interest and commission. The bank called on one of the sureties to pay half the sum which was due to them, but made no demand on the other surety, though it did not appear that they had released him. The surety who was called on to pay paid the sum demanded and presented a bankruptcy petition against his co-surety, alleging as a debt due to him from the co-surety half the amount which be himself had paid to the bank, and the registrar adjudicated the co-surety a bankrupt. On the appeal it was admitted that tbe legal right of a surety to contribution was correctly laid down in Sanies w. Humphrey) (6 M. & \V. 153), where Parke, B., said (p. 168), "The right" (of contribution) "is founded not originally upon oontract, but upon a principle of equity. . . . What, then, is the nature of the eqnity upon which the right of aetion depends :- Is it that when one surety bas paid any part of the debt, he shall have a right to call on his co-surety or co-sureties to bear a proportion of the burthen, or that, when he has paid more than his share he shall have a right to be reimbursed whatever he has paid beyoud it? or must the whole of the debt be paid by bim, or someone liable, before he has a right to sue for contribution at all? We are not without authority on this subject, and it is in favour of the second of these propositions." And Parke, B., referred to Ex parte Gifford (6 Ves. 805), in which Lord Eldon said (p. 808), that co-sureties "stand with regard to each other in a relation which gives rise to this right among others, that, if one pays more than bis proportion, there shall be a contribution for a proportion of the excess beyond the proportion which in all events he is to pay." And Parke, B., added (p. 169), " Until the one bas paid more than his proportion, either of the whole debt, or of that part of tbe debt which remains unpaid by the principal, it is not clear that he ever will be entitled to demand anything from the other ; and before that he has no equity to receive a contribution, and consequently no right of action which is founded on the equity receive it. . . . It would tend to multiplicity of suits, and to a great inconvenience, if each surety might sue all the others for a rateable proportion of what he had paid, the instant he had paid any part of the debt." But it was contended that courts of equity acted on a different principle, and that this appeared from Craythorne v. Swinburne (14 Ves. 160), in which Lord Eldon said (p. 164), "It has long been settled that, if there are co-sureties by the same instrument, and the creditor calls upon either of them to pay the principal debt, or any part of it, that surety baa a right in this court, either upon a principle of eqnity, or upon contract, to call upon his- co-surety for contribution." The Court of Appeal (james, Brett, and Cotton, LJJ.), however, held that there was not a good petitioning creditor's debt, and annulled the adjudication. James, L.J. said that there was no debt either at law or in equity. Cosureties were bound to bear the whole burden equally. If one surety had paid a part of the debt for which they were all jointly liable, it was impossible to say till the whole was paid that there was any ascertained debt which could be made the foundation of proceedings in bankruptcy. In such a case as the present his lordship thought the proper course would be to bring an action against the co-surety to compel him to contribute to pay the debt to the creditor. But until the one surety had paid more than, as between himself and his co-surety, he could be called on to pay, no equity arose between them. Bbett, L.J., said that the rule was distinctly laid down in Davie* v. Humphreys, which had never since been questioned, and it was founded upon Ex parte Gifford. Craythorne v. Swinburne did not conflict. A surety had no claim against his co-surety till he had paid more than his proportion of the debt due to the
Lunatic Trustee — Mortgage — Vesting Order— Trustee Act, 1850, s. 3—Evidence.—In a case of In re. Ireland, before Cotton, L.J., in lunacy, on the 19th inst., a question arose as to the making of a vesting order under the Trustee Act, 1850. In December, 1872, the three trustees of a will advanced £1,000, part of the trust moneys, on a mortgage of real estate, the estate being demised to them by the mortgagor for a term of 999 years at a peppercorn rent. In 1874 one of the trustees died. In 1878, the mortgagor paid off the mortgage debt, but the estate Whs not re-assigned or surrendered to him. In February, 1880, one of the two surviving trustees was found a lunatic. Afterwards, upon a petition presented in lunacy and in the Chanoery Division, two new trustees of the will were appointed in the place of the deceased trustee and the lunatic trustee. The present petition was presented by the committee of the lunatic's estate and the two new trustees, asking for an order vesting the mortgaged tstate in the mortgagor. Cotton, L.J., felt some difficulty at first about the jurisdiction, but ultimately made the order, considering that he had power to do so under section 3 of the Act. And, to save expense, he allowed the petitioner to use the evidence which had been filed upon the former petition for the appointment of the new trustees.—Solicitors, Gush Jc Phillips.
Prescription—Profit A Prenbbb In Alieno Solo— Right To Cut Litter Jrom Common—Prescription Act (2 & 3 "will. 4, o. 71), s. 1.—In a case of Earl De La Warr v. Miles, before the Court of Appeal on the 21st inst., a question arose as to the effect of the Prescription Act with reference to a claim of a profit a prendre in alieno solo. The action was brought by the owner of the soil of a forest, which was subject to certain rights of common, to restrain the defendant from cutting and carrying away brakes, fern, heather, and litter from the forest. In the year 1691 a suit had been instituted by the then owners of the soil ot the forest against the commouers to determine how much of the forest might properly be inolosed, having regard to the rights of common, and in 1693 a decree was made in that suit by which portions of the forest were allotted to the owners of the soil for inclosure, free from rights of common, and the rest of the forest was allotted to remain open and nninclosed, subject to certain specified rights of common in favour of the oommoners. The defendant in Earl De La Warr v. Miles was a commoner in reaped of a tenement to which he derived title through one of the defendants to the suit of 1691. By his statement of defence he claimed to be entitled under the decree of 1693, with the ■ other commoners, to the ownership of- the brakes, feru, . heather, and litter growing on the portion of the forest which was allotted to the commoners, in exolusion of the owner of the soil. The defendant also claimed, in the alternative, that he and his predecessors in title, owners of the same tenement, and the several occupiers of the tenement from time to time, had actually taken and enjoyed as of right in respectof thetenement, without interruption, for the full periods of thirty years and Bixtyyefrs, respectively, preceding the commencement of the action, the right of cutting and carrying away brakes, fern, heather, and litter from the portion of the forest allotted to the commoners, sufficient for the manurage, improvement, maintenance, sustaining, . repairing, and amending the tenement. The plaintiff by his reply pleaded that the defendant's two claims—the claim to a share in the ownership of tbe brakes, &c, and the claim to a prescriptive right of profit a prendre in respect of his tenement — were inconsistent with each other, and that the defendant ought to rely on one or the other of the two claims, and not upon both at the same time. And the plaintiff said that the purposes for which tbe prescriptive right was claimed were so unlimited and uncertain, and so destructive of the common allotment over which they were claimed, that they could not be properly claimed under a prescriptive title. Bacon, Y.C., held, upon the construction of the decree of 1693, that it did not give the commoners the ownership of the brakes, &c., but that their right under it was limited to common of pasturage and herbage, and be held that the alternative claim of a right by prescription was inconsistent and could not be maintained, and, indeed, he Whs of opinion that the claim of a profit a prendre alisn