Page images
PDF
EPUB

I am not aware of any general precedent of lease) which might be taken as containing covenants CASES OF THE WEEK. dealing with the same subject in different ways. For

FRAUD ON BANKRUPT LAW-Cessio BONORUM --In instance, how seldom is it that you see a lease containing

| case of Ex parte Brooks, before the Court of Appeal on the a covenant that the landlord should do any kind of

11th inst., it was attempted to set aside a payment which repair, or that he should have any right to enter on the

| had been made by a bankrupt to one of his creditors, on the premises, safe for the purpose of taking a schedule of

ground that it amounted to a cessio bonorum in favour of a fixtures or a list of the dilapidations ? Surely every certain number of his creditors, and that it fell within the landlord ought to have the right to show over the principle of the decisions of the Court of Appeal and premises any person to whom, during the twenty-one the House of Lords in Tomkins v. Saffery (25 W. R. years, he may wish to sell the property ? Again, in 218, 26 W. R. 62, L. R. 4 Ch. D. 565, 3 App. Cas. underleases how seldom does the lessor reserve the right 213). In the particular case the court held that there to do repairs if the lessee should omit to do them?

had been no such cessio bonorum as was suggested, and I recollect in your last review of “Prideaux's Pre.

that Tomkins v. Saffery did not apply. But JAMES, L.J., cedents” you called attention to this defect in that

said that he did not wish to put any limit on the decision in otherwise very excellent book, and pointed out that it

Tomkins v. Saffery. He should be sorry to say that anything

like an assignment of trade assets in trust for trade contained no general form of lease. Every day this

creditors, or of private assets on trust for private credimatter becomes more important, since the more en

tors, or of English assets on trust for English creditore, lightened and more extensive knowledge possessed by would be permitted to stand. Bat it was impossible to solicitors enables them to advise their clients better say, having regard to the facts of the present case, that than they used to do, and thus it has come to pass that there had been anything like a private bankruptcy, liquidathe deficiencies of the old form of lease have become tion, or composition.-SOLICITORS, R. W. Marsland ; Gre. apparent.

gory, Rowcliffes, d: Co. There are few duties of more importance than for a solicitor carefully and fully to advise his client, whether

BILL OF SALE-STATEMENT OF CONSIDERATION-BILLS OF lessor or lessee, in granting or accepting a lease.

SALE ACT, 1878, s. 8.-In a case of Ex parte The Charing Cross I think that this duty is too often inadequately | Advance and Deposit Bank, before the Court of Appeal on performed, and I think that the profession are in many

the 11th inst., the question arose whether the consideration respects fortunate that they escape the consequent for a bill of sale of chattels had been set forth in it as reliability.

quired by section 8 of the Bills of Sale Act, 1878. The deed We are all assumed to know the law, but I think it purported to be given to secure a loan of £120 made by the has been certainly wise for the community, and perhaps grantees to the grantor, and in the operative part the not less wise for the solicitor, that the respective rights | deed was expressed to be made in consideration of £120 of lessor and lessee have not always been fully under

paid by the grantees to the grantor on its execution, the stood and acted upon.

A SUBSCRIBER.

receipt of which sum the grantor thereby acknowledged. In fact only £90 was paid to the grantor, £30 baving been re

tained by the grantees for “interest and expenses.” The INSURANCES ON UNFINISHED BUILDINGS.

execution of the deed by the grantor was attested by a solicitor,

the attestation clause stating, in compliance with section 10 of [To the Editor of the Solicitors' Journal.] the Act, that before its execution the effect of the deed was Sir,-Finding that many builders, in effecting insur explained by him to the grantor. The attestation clause was ances upon unfinished buildings, omit to mention

at the foot of the deed, and immediately after it there came to the insurance company's agent that the property

a receipt for £90, signed by the grantor, which stated that is unfinished, or, if they do mention it, fail to see

the £90, “ together with the agreed sum of £30 for interest that the proper clause is inserted in the policy, stating

and expenses," made up the sum of £120,“ being the con

sideration money within expressed to be paid” by the that workmen are still allowed on the buildings,

grantees to the grantor. The deed was registered. The it may be of use to members of the profession if they are

grantor afterwards became bankrupt, and Mr. Registrar reminded that in all cases where insurances are effected Hazlitt declared the deed void against the trustee, on the upon unfinished buildings, the fact that they are un. ground that the cousideration for it had not been stated in it inished should be mentioned in the policy, and an so as to satisfy the requirements of section 8, and this decision extra premium paid to cover the period during which was affirmed by the Court of Appeal (JAMES, COTTON, and workmen are allowed upon the premises. Unless the LUSH, L.JJ.) It was urged on behalf of the grantees that policy is effected in this form, it will not be safe to

the retention of the £30 by them was only a collateral assume that the insurance company cannot repudiate the

arrangement between them and the grantor as to the applicazisk.

tion of a part of the consideration, and that, consequently, London, Nov. 18.

according to the decision of the Court of Appeal in Ex parte The National Mercantile Bank (28 W. R. 848, L. R. 15 Ch. D. 42, 23 SOLICITORS' JOURNAL, 504), it was not necessary that it should be stated in the deed. And it was further

contended that the real transaction appeared in the attestation At the recent assizes Sir John Mellor, in addressing clause, which was a part of the deed. The court, however, the grand jury, thus explained the reasons for, and said that the decision in Ex parte The National Mercantile mode of, his appointment to go circuit: “Had it Bank did not apply, because in that case the part of not been that I was able to accept the proposal | the nominal consideration which was retained by the which the Lord Chancellor made to me, there would grantor was retained in satisfaction of a debt existing have been great difficulty in keeping all the courts independently of the transaction of loan, whereas in the at Westminster open. Most unexpectedly I was asked | present case the liability for “ interest and expenses” by the Lord Chancellor whether I would undertake

arose out of the transaction of loan which the bill of sale the duties which are here light, but in other parts

completed and rendered effectual. Such a retainer by the of the circuit are extremely onerous ; he stating that

grantor was the very thing intended to be prevented by

the Act. And the court held that the receipt could not be it would be & service to the public if I would undertake

looked at as supplementing or correcting the statement in to do it. I received this message by telegraph. Of

the deed. It was not necessary that there should be any course I had no alternative, not being able to plead

receipt, and moreover as it followed the attestation clause, serious illness, but to say I would do anything my health

the statement in that clause, that the effect of the deed had and strength would permit for the public service.”

before its execution been explained by the solicitor to the In the case of the Belfast Central Railway Company grantor, could not apply to the receipt, and therefore secagainst the Great Northern Railway Company of Ireland, tion 10 had not been complied with.-SOLICITORS, J. E. the Railway Commissioners have decided to sit in Belfast | Betts ; C. A. Swaine. to bear the case.

PRINCIPAL AND AGENT—COMMISSION AGENTS— PRO interested in the impare personalty, so that the effect of CEEDS OF SALE OF Goods-ACCOUNT.-On the 15th inst, the the order was to make bim pay the costs of the action. Court of Appeal (JAMES, COTTON, and LUSH, L.JJ.) affirmed He appealed from the declaration and consequent order as the decision of Jessel, M.R., in the case of Kirkham v. Peel

to the payment of the costs. Upon the bearing of the(28 W. R. 941). The question was whether the defendants, appeal, tbe argument turned to a great extent apon the to whom the plaintiff bad consigned goods on commission for effect of the decision of the Court of Appeal in Miles v. sale by them in India, they making him an advance of eighty Harrison (22 W. R. 341, L. R. 9 Ch. 316); the five per cent. on receipt of the goods, were bound to account cases which have since followed it, such as Harloe v. to the plaintiff, not only for the prices at which the goods Harloe (23 W. R. 789, L. R. 20 Eq. 471); Penny v. Penny were sold by them, and the amounts received by them from the (23 SOLICITORS' JOURNAL, 463, L. R. 11 Ch. D. 440); and purchasers, and the sums allowed for commission and other Sharp V. Lush (27 W. R. 528, L. R. 10 Ch. D. 468). It outgoings, but also for their application of the proceeds was said on the one side that the action had been improperly realized by the sale of the plaintiff's goods in India, including brought, and that Miles v. Harrison did not lay dowa the an account of the purchase with these proceeds of any rule that the costs of an administration suit are necessarily produce, and of the amounts realized by the sale of such included under “testamentary expenses,” where a testator produce. The plaintiff alleged that the moneys realized by has directed that such expenses shall be payable the sale of his goods belonged specifically to him, and that out of a particular part of his estate, withthe defendants were trustees of them for him, and that he was out regard to the question whether the suit has entitled to any profits wbich the defendanis had made by been properly instituted. On the other side it was said purchasing goods in India with these moneys, and afterwards that, even if the action bad been improperly brought, selling those goods in England. The court, however, held which was denied, yet, having regard to the direction in that the relation of trustee and cestui que trust bad not been the will, the costs of the action must, according to Miles v. created, and that the defendants were entitled to treat the Harrison, be charged on the impure personalty. The court moneys which they received from the sale of the plaintiff's (JAMES, COTTON, and LUSH, LJJ.) affirmed the decision of goods as their own, being only liable to account to bim for the Vice-Chancellor. During the argument JAMES, L. J., the balance of the proceeds of his goods, after deducting the suggested that, if an action was brought for the administra. advances which they had made to him.-SOLICITORS, Bower tion of a testator's will or for the clearing of his estate from & Cotton; Milne, Riddle, d. Mellor.

debts, the costs of it would be properly " testamentary expenses,” but that if it was in substance a personal action

against the executor or trustee to compel him to account POWER OF APPOINTMENT-EXERCISE BY WILL-DEATH

for an alleged non-feasance or to make good an OF APPOINTEE BEFORE TESTATOR.-In a case of Sperling v.

alleged misfeasance, the costs of it would not Rochfort, before the Court of Appeal on the 5th inst., a

be “testamentary expenses,” but ought to be paid question arose as to the effect of an appointment by will of real

either by the plaintiff or the defendant, and not thrown. estate to the testator's executors, on trust for another person

upon the owners of the estate. And in giving judgment absolutely, in exercise of a general power of appointment by

JAMES, L.J., said that he understood the effect of the decision will, the beneficial appointee having died before the testator.

in Miles v. Harrison to be that " testamentary expenses” The question was whether the appointed estate passed, as in

would include the costs of such a reasonable and proper ad. default of appointment, under the instrument which had

mninistration suit as would, in the absence of any direction created the power, or whether it became part of the general

by the testator, have been ordered to be paid out of bis. estate of the appointor. Malins, V.C., held that the presump

general residue. If the action was an improper one, the costs tion, which would have arisen in the case of an appointment of

of it ought to have been ordered to be paid by the plaintiff personal estate to the appointor's executors on trust for a bene

personally, and the Vice-Chancellor having found that the ficiary, that the appoiotor intended to make the fund part

action had been properly brought, in this view of the case of his general personal estate in the event of the failure of

the appeal was one for costs only. But so far as the facts the trust by the death of the beneficiary, did not arise in the

had been brought before the court, his lordship saw no reason case of real estate, and that the appointment bad consequently

for differing from the Vice-Chancellor. If other persons had failed, and the property passed under the instrument creating

been interested in the impure personalty, it might have been the power. This decision was reversed by the Court of Appeal

a matter for consideration whether the defendant ought not(JESSEL, M.R., and James and COTTON, L.JJ.), who beld

to have been ordered to pay the costs personally, the action that there was no reason for making any such distinction

having been caused by his own improvident dealing with the between real and personal estate. The testator by exercising

fund. It was not necessary, under the circumstances, to the power bad shown an intention of defeating the original

decide whether the action was one, the costs of which ought, settlement and making the property his own. And, the

according to the authorities, to be thrown upon the par. trust baving failed by the death of the beneficial appointee

ticular fund indicated by the testator. COTTON, L.J., agreed before the testator, there was a resulting trust, not for the

that it was not necessary to decide whether the words " testa. original settlor, but for the appointor, and the property

mentary expenses” would include the costs of such an action formed part of his general estate.-SOLICITORS, E, J.

as this, and that Miles v. Harrison did not decide that they Rickards; Milne, Riddle, d Mellor.

would. That case was really only a decision that, by virtue of the particular will, the pure personalty was exempted, not only from the payment of debts and legacies, but also from

testamentary expenses. He agreed with the Vice-Chancellor, ADMINISTRATION ACTION-Costs—“ TESTAMENTARY Ex ! on the ground that in the present case the testator bad exPENSES."-In a case of Young v. Dolman, before the Court pressed an intention that the impure personalty was to be of Appeal on the 8th inst., a question arose as to the effect treated as if it had been general residue." JAMES, L.J., added of a direction by a testator that his “testamentary ex that it must not be supposed that the court in any way acpenges” shall be paid out of a particular food. The | ceded to the suggestion that, because a testator had directed testatrix in the cause had by her will created two residues that his testamentary expenses should be paid out of a parof ber estate, the one consisting of impure, the other of pure ticular fund, anyone might get the costs of any adminis personalty. Out of the latter she had made bequests to tration suit whatever out of that fund.-SOLICITORS : E. H. charities, and she had directed that out of the former Biggin ; Chas. Gasquet ; Hare g Mell. should be paid her debts and funeral and testamentary expenses, and legacy and succession duties. The action was brought by the person interested (subject to the charit. PARTICULARS OF DEMAND-COMMON LAW ACTION FOR. able gifts) in the pare personalty against the executor MONEY.-In a case of Augustinis v. Nerinckx, before the and trustees, for the administration of the estate. Court of Appeal on the 5th inst., a question arose as to Hall, V.O., held that the action had been properly the power of the court to order a plaintiff to give par. brought, and by his order on further consideration ho de ticulars to the defendant of his claim against him. The olared that by virtue of the will the costs of the action statement of claim in the action, which was brought in were charged upon and payable out of the impure per the Chancery Division, alleged that the defendant's tegsonalty in exoneration of the pure personalty, and ordered tator, one G., had advanced moneys to one Crispin to the costs of all parties to be paid accordingly out of the enable him to carry on a litigation, and that G., being impure personalty. The executor was the person beneficially | unable to supply all the money required by Crispin, applied

'to A., the plaintiff's testator, to supply the further sums that profit was properly estimated by taking the surplus reqaired, there being an arrangement between A. and G. of receipts over exponges, and by returning the capital to that all soms contributed by them and lent to Crispin the state in which it was at the beginning of the year. abould be treated as a joint transaction, and that the He could not accede to the saggestion that because the money should be repaid to the lenders, respectively, when ordinary shareholders had been previously improperly paid Crispin should establish his claim to the property in certain amounts the preference shareholders were now respect of which he had brought his action. The plaintiff to be mulcted to make good those amounts which were farther alleged that A. in pursuance of this arrangement, to be expended in the repair of the tramways. He must during the course of Crispin's action, from time to time therefore make a declaration that the plaintiff was entitled contributed sims of money for the purpose of their being to be paid the dividend for the 31st of December, 1878, lent to Crispin, and that the total amount thus contributed out of the profits of that year.-SOLICITORS, King & Peto; up to the time of G.'s death was about £27,000. The Harrison, Beal, f Harrison. plaintiff alleged that the defendant had recovered judg. mest against Crispin for £11,465 in respect of loads made to him by G., and that in Crispin's action a sum of COMPANY - FORFEITURE OF SHAPES — POWERS OF consols had been carried over to a separate account in the DIRECTORS-REDUCTION TO LESS THAN QUORUM.-In the defendant's name in satisfaction of the debt of £11,465. case of Re Alma Spinning Company, before the Master of the The plaintiff claimed a declaration that the game advanced Rolls on the 15th inst., & summons was taken out by the by G. to Crispin were transactions in which G. and A. liquidator of the company for a declaration that one Bottomwere interested as partners ; that the amounts contributed

ley was not entitled to be registered as the holder of 250 by them respectively might be ascertained; that it might

shares in the company, and that the assets might be dealt be declared that the plaintiff was entitled jointly with the

with as if such sbares bad been forfeited. In 1877, Bottomley defendant to the benefit of the judgment against Crispin,

was the registered owner of 250 shares in the company, and and to a proportion of the stock standing to the defend

was also a director. In October, 1877, a resolution for the ant's credit ; or that the defendant was a trustee of the

| liquidation of his affairs by arrangement was passed and a judgment for the plaintiff to the extent of A.'s contribu

trustee appointed. The assets of the company were then tions, and that they might be paid out of the fund standing

of little value, but, on the 16th of October, 1878, a fire took to his credit. On the defendant's application, Pollock, B.,

| place of the property of the company, and the insurance as Vacation Jadge, ordered the plaintiff to deliver to the

moneys produced sufficient to enable a return to be made to defendant an account in writiog, with dates and items, of

the shareholders, and in December, 1878, a resolution for the the particulars of the sum of £27,000 ncentioned in the

voluntary winding up of the company was duly passed,

Shortly after Bottomley's liquidation the directors of the com. statement of claim. This order was discharged by the Court of Appeal (JESSEL, M.R., and JAMES and COTTON,

pany called upon him and bis trustee to pay some calls on the

250 shares, and subsequently, in consequence of the non-pay. L.JJ.). JESSEL, M.R., said that when an action, though brought in tbe Chancery Division, was really what would

ment of the calls, they forfeited the shares under certain

clauses of the company's articles of association. By other before the Judicatore Act have been a common law

clauses of the articles it was provided that the business of the action for a money demand, an order for particulars might

company should be conducted by not less than five, or more be made now in the Chancery Division just as it would

than seven, directors, and that a director should vacate his formerly have been made by a common law court. But where,

office if he held less than twenty shares, or if he became as in the present case, the action was really a chancery

bankrupt or insolvent. At the date of Bottomley's liquidation action for an account, such an order would not be made.

there were only five directors, including himself, and the SOLICITORS, G. S. f H. Brandon ; Keighley, Shea, & Bevan.

vacancy caused by his insolvency had not been filled up, but by some informal proceedings, altering the articles, the directors

had purported to reduce the minimum of the directors to COMPANY-PREFERENCE SHAREHOLDER—DIVIDEND PAY.

three. It was contended by the respondent that the TEXT OUT OF CAPITÁL-PROFITS OF PARTICULAR YEAR.

proceedings forfeiting the shares were null and void, as In a case of Dent v. London Tramways Company, before the

there were not sufficient directors to conduct the business of Master of the Rolls on the 16th ingt., the plaintiff, who

the company according to their articles. JESSEL, M.R., said sued on bebalf of himself and all other preference share

that the meaning of the clause as to the number of directors holders in the company, claimed a declaration that he

was plain, and no argument of convenience could avail where, was entitled to be paid a dividend in full for the half year as here, the article was not doubtful or ambiguous. He ending the 31st of December, 1878. According to the terms could not, therefore, hold that the clause was directory only, of the special resolution under which the preference shares and not binding. A maximum and minimum number of were issued, they were to bear a perpetual dividend of six directors was fixed, and it was necessary that their number per cept. per annum over the ordinary shares of the com should always be between those limits. The directors, therepang,"dependent opon the profits of the particular year fore, in his opinion, had not the power to make the calls or only." The company, prior to 1878, had improperly dealt enforce them, and the forfeiture was accordingly null and with their fands, and bad paid dividends to their ordinary void. The benefit of sharing in the assets could not, how. sbareholders, instead of expending the amount in repair ever, be allowed without the calls being first paid up. He and renewal of their tramways. In Marob, 1879, in an therefore dismissed the summons, the respondent undertaking action of Davison v. Gillies, Jessel, M.R., restrained the to pay the sum demanded by the liquidator in respect of the directors from paying the ordinary shareholders any unpaid calls.-SOLICITORS, Milne & Co.; Phelps, Sidgwick, dividend, on the ground that it was & payment out of Biddle. . capital. From a report of certain accountants, it appeared that the company had made & net profit in the year 1878

MUNICIPAL CORPORATIONS Act, 1835, s. 52-Dis. of more than sufficient to pay the interest on the prefer

QUALIFICATION OF ALDERMAN-COMPOUNDING BY DEEDence sbares. For the company it was contended that the

DEBTORS ACT, 1869, s. 21-COMPOSITION WITH CREDITORS. preference shareholders were no more than the ordinary

-In a case of Aslatt v. Mayor and Corporation of Southsbareholders entitled to any dividend, and that the divi.

ampton, before the Master of the Rolls on the 8th inst, a dend should go to recoup the amounts that should have

motion was made to restrain the defendants, the borough been previously expended, JESSEL, M.R., was of opinion i town council, from avoiding or declaring void the office of that, according to the bargain made with the company, I alderman of the borough held by the plaintiff, and from apthe preference shareholders were dependent for their pointing or electing any successor to him and interfering with dividends on the profits of each particular year only. If

his rights and privileges as an alderman. The plaintiff in no profits were made in one year, and in the next the com January submitted a proposition to his creditors for a compady made twelve per cent., they would still only be position on their debts, and this composition was accepted by a entitled in that year to their six per cent., and they were, certain number of the creditors by a resolution and by a 80 to say, co-adventurers with the ordinary shareholders circular letter. The plaintiff did not execute any composition for each particular year, Looking at the report of the deed, and had not taken any proceedings under the Bank-acoountants, he was of opinion that there was daring the ruptcy Act, 1869, for an arrangement or composition with his year 1878 an amount of profit fairly earned more than I creditors. He had, however, executed a bill of sale in which eufficient to pay the preference dividend in fall, and that he admitted, in cross-examination, that the consideration was stated to be the finding of money for the purposes of his com rating required the sporting rights to be assessed unless the position. The defendants had not taken any step to avoid Act expressly provided otherwise, which they held, negativ. the office until the 4th inst., when, in consequence of the ing the appellant's contention, it did not. They therefore gave death of another alderman, the mayor called a meeting of the judgment for the respondents.-SOLICITORS, Simpson, Ham. corporation to be held on the 8th inst., at half-past two, to mond, & Co., for Kelly & Keene, Mold. declare the office of alderman held by the plaintiff void, and to elect another alderman in the place of the gentleman who was dead, and for other business. The grounds upon which the defendants contended that the office was vacant were by PRACTICE-Costg-CLAIM WITHIN ADMIRALTY JURIS virtue of the Municipal Corporations Act, 1835, s. 52, by DICTION OF COUNTY COURT-31 & 32 Vict. c. 71, Ss. which any alderman wbo sball “compound by deed with 3, 9.-JUDICATURE Act, 1873, s. 67—JUDICATURE Act, his creditors shall immediately become disqualified, and shall 1875, s. 33, SUB-SECTION 2-ORDER 55.- In the case of cease to hold the office of alderman, and the council shall Tennant v. Ellis, before the Queen's Bench Division on forthwith declare the office to be void and signify the same," November 15, the question was raised in an action within as therein provided. By the Debtors Act, 1869, the dis the county court admiralty jurisdiction brought in the qualification is extended to any person who has been declared High Court and tried before a judge and jury, whether bankrupt, or arranged, or compounded with his creditors under the plaintiff, in the absence of a certificate of the judge is the Bankruptcy Act, 1869, whether by deed or otherwise. deprived of his costs under sections 3 and 9 of 31 & 32 Vict. c. For the defendants on the motion it was argued that the 71 (the County Courts Admiralty Jurisdiction Act, 1868), as plaintiff had in effect “ compounded by deed” with his he would have been before the passing of the Judicature creditors, and that his case was, at all events, within the Acts, or is entitled to them under Ord. 55, as interpreted in. mischief intended to be prevented by the above disqualifica. the recent decision in Garnett v. Bradley (26 W. R. 698: tion. It was further argued that the Master of The Rolls L. R. 3 App. Cas. 944), which practically decided that under had no jurisdiction to entertain the case, which should have section 33, sub-section 2, of the Judicature Act, 1875, all Acts been brought by some proceeding in the Queen's Bench Division. inconsistent with order 55 as to costs were repealed, subject JESSEL, M.R., said that the case was one of great importance, of course, as stated in order 55, to the provisions of the Act, and he should have been glad if it had been possible to have section 67 of which i.e. the Judicature Act, 1873) applies had further time to consider the point. As the meeting had, certain sections, 5, 7, 8, and 10, of the County Courts Act, however, been called for that day, he wos compelled to decide 1867, to actions and proceedings in the High Court, but it at once, and bis decision must, to a great extent, be a final there is no similar provision relating to sections 3 and 9 of one under the circumstances. If any miscarriage did occur, the County Courts Admiralty Jurisdiction Act, 1868. The the defendants were only to blame for not having brought the plaintiff here had recovered £73, the full amount claimed in matter to an issue previously. In his opinion, what the La claim within sub-section 3 of section 3 of the latter Act, plaintiff bad done was not a “composition by deed” within the which section enables the county court to give relief where meaning of the Municipal Corporations Act, 1835, 8. 52, and such claim does not exceed £300. The master had refused it could also not be said to be an arrangement or composition to tax. The court (FIELD and MANISTY, JJ.) made the under the Bankruptcy Act, 1869. He was bound, as the order upon the master to tax the plaintiff's costs, bolding sections were penal, to construe them strictly, and what that tbe sections and order of the Judicature Acts cited ever he might think was the spirit of the Acts in ques. were inconsistent with, and therefore repealed so much ofg tion, technically the plaintiff was not liable to the penalties sections 3 and 9 of the County Courts Admiralty Jurisdic. imposed thereby, and he bad not therefore ceased to hold tion Act, 1868, as would have deprived the plaintiffs of their office, and the defendants were not justified in impeding him costs in this action.-SOLICITORS, F. W. f H. Hilbery; in the exercise of his duties. He was further or opinion that, | Mark Shephard. whatever power the old Court of Chancery migbt have had in a case like the present, be now had ample jurisdiction, under section 25 of the Judicature Act, 1873, to grant an REGISTRATION-BCROUGH AND COUNTY VOTES-QUALI-injunction in all cases for the protection of a legal right or |FICATION-REFORM ACT (2 WILL. 4, c. 45), ss. 25. 27.the prevention of a threatened wrong, where it was “just Sanders v. Searson, which came before the Common Pleas and convenient" so to do. He also thought that this Division on November 13, was an appeal from a decision of action was not one of those assigned to the Queen's the revising barrister for the Northern Division of NorthBench Division, and, even if it had been, he still amptonshire. Since 1869 the respondent had occapied a. considered that he bad jurisdiction to interfere where, as piece of land at Peterborough, under Mr. Fitzwilliam, at a here, his inteference was imperatively demanded, and where, rent giving him a right to vote as a £12 occupier if he refused to hear the application, it would, in effect, be under the Representation of the People Act, 1867. Some & denial of justice. He therefore granted an injunction years afterwards, the respondent took a house in Peterrestraining the defendants from avoiding the office of alder borough, under the same landlord, and having occupied it man, and from interfering with the plaintiff in his duties

ever since, has a vote for the borough. After taking the and privileges thereof. By consent this injunction was made house, the respondent took another piece of land in Peterperpetual, with costs.- SOLICITORS, Stocken 8. Jupp; Walker, borough, under the same landlord, which was also rated at Belward, & TT hitfield.

more than £12. The two pieces of land are apart from each other, and both are more than a mile from the house occu

pied by the respondent, and in respect of which he votes POOR RATE-ASSESSMENT-LAND USED FOR A PLANTA.

for the borough. Each parcel was held at a separate reni, TION OR A Wood--RIGHTS OF SPORTING.-In a case of Eyton and it was admitted that a separate notice to quit would be v. Overseers of Mold, which came before the Queen's Bench required for each property. The appellant objected to the Division on Saturday last, on a special case by way of appeal | respondent's name being retained on the list of voters, on the against a poor rate, the question raised was whether in rating ground that each of the pieces of land was occupied "toland used for a plantation or a wood, and not for the growth getber with

getber with " the house within the meaning of secof saleable underwood, but used also as a game preserve, the

tion 25 of the Reform Act, and that the respondent was right of sporting which remained in the occupier and owner thereby precluded from voting for the county. The could be taken into account in the assessment value. Counsel respondent contended that his occupation of the two pieces for the appellant contended that, as before 37 & 38 Vict. c. 54,

of land was distinct from that of the house, and that such woodland was not rateable, section 11 of that Act must he was entitled to a vote for the county. The court (GROVE, be strictly construed ; that under sub-section (a), where land | LINDLEY, and LOPES, JJ.), in affirming the decision of the is used only for a plantation or a wood, the value is to be

revising barrister, were of opinion that the words “together estimated as it the land were let and occupied in its natural

with " did not mean contiguity of situation, nor at the and unimproved state ; and that in estimating its value in |

same time, but under one occupation, as when a garden the natural and unimproved state a right of sporting ought

is attached to a house in which the voter lives. They con-not to be included; and that the word “ only” did not exclude

sidered that the two pieces of land in this case were the use of the land for sporting, but was meant to exclude

held distinct from the house, and entitled the respondThe other uses of ihe land mentioned in the same section, in

ent to a vote for the county. The appeal was dissub-sections (6) and (c), as for saleable underwood. The court | missed with costs.-SOLICITORS, Clark, Rawlins, d. Clarks (FJELD and MANISTY, JJ.) held that the general principles of 1 for Perceval & Son.

or bave any operation upon, a writ of elegit issued in an action CASES BEFORE THE BANKRUPTCY

in which the applicants were plaintiffs, and the liquidating REGISTRARS.

debtor was defendant; and that, to that extent, the injuncBefore Mr. REGISTRAR. BROUGHAM (acting as Chief tion should be discharged. Jadge).

On the 29th of October, 1880, the applicants recovered Nov. 11.-Ex parte Stuart, Re Hargrave.

judgment against Arthur Mitchell, then carrying on business

as a builder, for the sum of £253 7s. 5d., and on the same Where a resolution for liquidation by arrangement has been

day a writ of elegit was issued by the applicants, and lodged brought into the office and filed, the court will not allow a

with the sheriff of Essex. Mr. T. W. Hemming, solicitor, creditor to sign it, notwithstanding the fact that the omission

and acting also as managing clerk to the solicitors for the to sign has arisen through inadvertence.

applicants, in an affidavit used in support of the application, This was an application on behalf of Mr. Wm. Stuart said the sheriff of Essex entered into possession, he believed, for leave to sign a resolution for liquidation by arrange of the debtor's property on the 30th of Oc:ober, under the writ ment, which had been brought into the office and filed. of elegit.

On the 6th of Ootober the debtor presented a petition for On the 2nd of November, Mitchell presented a petition to liquidation under the 125th and 126th sections of the the London Court of Bankruptcy for liquidation by arrangeBankruptoy Act, 1869. The first meeting of creditors ment, and on the following day the court appointed a retook place at the Guildhall Coffee House, in the City of ceiver, and ordered that the applicants and W. R. Huggins, London, on the 5th of November, when Mr. Staart attended and the sheriff of Essex, should be restrained from taking the meeting as a creditor for £28 ls. 60., and as proxy for further proceedings upon the judgments recovered by them Eliza Ward, a creditor for £168 65, 8d.

until after the 23rd inst. On the 3rd the restraining order Mr. Stuart stated in his affidavit that at the meeting he was served on the applicants, and also on the sheriff of Essex. proposed a resolution for liquidation by arrangement and The sheriff was also served with two notices of claim by Toted for it, but through inadvertence he oniitted to sign, | A. H. McBean, dated the 3rd of November. Upon receipt as he had to leave the meeting to attend another appoint- of such notices the sheriff caused an interpleader summons ment while the other creditors were signing it. He now to be issued, which was heard on the 11th, when the master desired to sign the resolation on his own behalf, and as stated that it was not in his power to adjudicate on the proxy for Eliza Ward,

summops while the restraining order was in existence, The debtor's solicitor also deposed that he attended the and he adjourned the summons until after the expiration of meeting at which a resolution was passed by the creditors for the order. liquidation by arrangement, and he was appointed to file Notice had been given by the sheriff that the hearing and such resolution. Mr. Stuart attended the meeting on his inquiry under the writ of elegit would take place at the Shire own behalf, and as proxy for Ward, and proposed the resolu Hall, Chelmsford, on the 15th inst., and he had summoned a tion, and voted in favour thereof, and was to bave signed the jury for that purpose; and the applicants alleged that if the same, but left in a great burry. Saturday and Sunday inter inquiry was not held on that day, they would be put to the Vened, and oa Mouday his clerk filed the resolution, and it was extra expense of paying the sheriff's officer during the time not then noticed that Mr. Stuart had not signed as promised that he might continue in possession, and their title might by bim.

also be injured by the delay. It further appeared that proIt appeared that twenty-seven creditors, whose debts ceedings had been instituted by the applicants in the Chancery amounted in the aggregate to £910 14s. 4d., were present at Division to enforce their judgment by obtaining equitable the meeting, either personally or by proxy, and of these execution of the chattels real of the debtor. twenty-four, representing a total of £668, voted in favour of H. Tindal Atkinson, for the applicants, contended that the the resolution; but, without the vote of either Mr. Stuart or injunction should not have been granted in its existing form, E. Ward, the resolution was lost, a sufficient statutory and he asked that, so far as it related to the proceedings majority not being obtained. After the papers had been under the elegit, it should be dissolved. Ex parte Gourlay brought into the office and filed, it was discovered that the (49 L. J. Bkcy. 23), showed that a creditor in the posiresolution had not been signed by Mr. Stuart, and he applied tion of the present applicants was a secured creditor. Proto the authorities to be allowed to sign, but the chief clerk bably, if the actual facts had been brought before the regis(Mr. Penn), upon the authority of Ex parte Thorne, Retrar, the order would not have been made. Butlin (21 W. R. 763, L. R. 8 Ch. App. 722), declined to Finlay Knight, for the receiver.-The evidence in support allow him to do so.

of the application is insufficient, because the solicitor's clerk Brough, in support of the application.- Ex parte Thorne, only states his belief that the sheriff seized on the 30th of Re Butlin, is distinguishable, because in tbat case the creditors October. The application is made nearly a fortnight after had voted against the resolution, and applied afterwards for the injunction was granted, and it is therefore too late. leave to sign a resolution in favour of it. Here the creditor Ex parte Gourlay, when before the Cour: of Appeal, stood proposed the resolution, and the omission to sign has arisen over for further evidence in regard to the steps which had through inadvertence. In Ex parte Thorne there were pro been taken under the writ. In the present case the receiver ceedings in bankruptcy pending, which is not the case here. did not know what had been done under it except this, He also cited Re Wehner (20 W.R. 199).

that the sheriff having received notice of claims by Mr. REGISTRAR BROUGHAM said he did not think he could another person bad taken out a summons to interplead. make any order in this case. He thought the principle of Mr. REGISTRAR BROUGHAM said the only question was Er parte Thorne applied. No doubt the creditors in that i

whether there had been a seizure by the sheriff. If the execu. case had voted against the resolution, but they changed their tion creditors had an imperfeot title, the receiver objected to winds and desired to sign the resolution, and they accident- their making it perfect. The injunction would be dissolved ally omitted to do so before it was filed. James, L.J., said,

upon an undertaking by the applicants not to proceed with "It would open the door to great fraud and serious incon

the inquisition or to enforce their judgment by further provenience if, after the resolution had been taken to the office,

| ceedings in the Chancery Division until after the first any person might go in and ask to be allowed to sign his

meeting of creditors. There had been some delay in Dame to it." The application must be refused.

making this application, which was not altogether fair to Solicitor, W. I, Marshal.

the receiver.

Solicitors for the applicants, Remnant, Penley, f Grubbe, Before Mr. REGISTRAR BROUGHAM (acting as Chief Judge).

for Hunnibun g Son, Huntingdon.

Solicitor for the receiver, A. R. C. Oldman.
Nov. 13.-Ex parte Beart, Re Mitchell.
Injunction obtained ex parte, restraining a judgment creditor
from proceeding under a writ of elegit, dissolved upon terms.

Before Mr. Registrar Pepys (acting as Chief Judge). This was an application on behalf of Messrs. Robert Beart & Sons for an order that an injanction granted ex parte on

Nov. 16.-Ex parte Lovering, Re Simons, the 3rd of November inst., restraining the applicants, and Mr.

Assignment of book-debts by undischarged debturs to a surety W. R. Huggins, and the sheriff of Essex from taking any

for payment of a composition under section 28, and to another

person, set aside, notwithstanding the fact that payments have farther proceedings upon the judgments recovered by them

been made by the assignees to the debtors sabsequently to against the debtor in the Excheqner Division of the High

the resolutions for the purpose of enabling them to continue Court of Justice until after the 23rd inst., should not apply to their business,

« PreviousContinue »