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I am not aware of any general precedent of lease] which might be taken as containing covenants ; with the same subject in different ways. For , how seldom is it that you see a lease containing a covenant that the landlord should do any kind of repair, or that he should have any right to enter on the premises, save for the purpose of taking a schedule of fixtures 01 a list of the dilapidations? Surely every landlord ought to have the right to show over the premises any person to whom, during the twenty-one years, he may wish to sell the property? Again, in underleases how seldom does the lessor reserve the right to do repairs if the lessee should omit to do them? I recollect in your last review of "Prideaux's Preyou called attention to this defect in that 1 very excellent book, and pointed out that it no general form of lease. Every day this comes more important, since the more enand more extensive knowledge possessed by solicitors enables them to advise their clients better thin they used to do, and thus it has come to pass that the deficiencies of the old form of lease have become apparent.
There are few duties of more importance than for a solicitor carefully and fully to advise his client, whether lessor or lessee, in granting or accepting a lease.
I think that this duty is too often inadequately performed, and I think that the profession are in many respects fortunate that they escape the consequent liability.
We are all assumed to know the law, but I think it has been certainly wise for the community, and perhaps not leas wise for the solicitor, that the respective rights of lessor and lessee have not always been fully underL acted upon. A Subscribes.
INSURANCES ON UNFINISHED BUILDINGS.
[To the Editor of the Solicitors' Journal.} Sir,—Finding that many builders, in effecting insurances upon unfinished buildings, omit to mention to the insurance company's agent that the property is unfinished, or, if they do mention it, fail to see that the proper clause is inserted in the policy, stating that workmen are still allowed on the buildings, it may be of use to members of the profession if they are reminded that in all cases where insurances are effected upon unfinished buildings, the fact that they are unfinished should be mentioned in the policy, and an extra premium paid to cover the period during which workmen are allowed upon the premises. Unless the policy is effected in this form, it will not be safe to iaime that the insurance company cannot repudiate the risk. O. , Nov. 18.
At the recent assizes Sir John Mellor, in addressing the grand jury, thus explained the reasons for, and made of, his appointment to go circuit: "Had it not been that I was able to accept the proposal which the Lord Chancellor made to me, there would have been great difficulty in keeping all the courts at Westminster open. Most unexpectedly I was asked by the Lord Chancellor whether I would undertake the duties which are here light, but in other parts of the circuit are extremely onerous; he stating that it would be a service to the public if I would undertake to do it. I received this message by telegTaph. Of I had no alternative, not being able to plead , but to say I would do anything my health and strength would permit for the public service."
In the case of the Belfast Central Railway Company against, the Great Northern Kailway Company of Ireland, the Railway Commissioners have decided to sit in Belfast
CASES OF THE WEEK.
Fraud On Bankrupt Law—Cessio Bonorum — In a case of Ex parte Brooks, before the Court of Appeal on the 11th inst., It was attempted to set aside a payment which had been made by a bankrupt to one of his creditors, on the ground that it amounted to a cessio bonorum in favour of a certain number of his creditors, and that it fell within the principle of the decisions of the Court of Appeil and the House of Lords in Tomkins v. Safferij (25 W. R. 218, 26 W. R. 62, L. R. 4 Ch. D. 565, 3 App. Cas. 213). In the particular case the court held that there had been no such cessio bonorum as was suggested, and that Tomkins v. Saffery did not apply. But James, L. J., said that he did not wish to put any limit on the decision in Tomkins v. Safer;/. He shonld be sorry to say that anything like an assignment of trade assets in trust for trade creditors, or of private assets on trust for private creditors, or of English assets on trust for English creditor*, would be permitted to stand. But it was impossible to say, having regard to the faces of the present case, that there had been anything like a private bankruptcy, liquidation, or composition.—Solicitors, S. W. MarsUnd; Gregory, Roaeliffes, <b Co,
Bill Of Sale—Statement or Consideration—Bills Of Sale Act, 1878, s.8.—In a case of Ex parte Ihe Charing Cross Advance and Deposit Bank, before the Court of Appeal en the llth inst., the question arose whether the consideration for a bill of sale of chattels had been set forth in it as required by section 8 of the Bills of Sale Act, 1878. The deed purported to be given to secure a loan of £120 made by the grantees to the grantor, and in the operative part the deed was expressed to be made in consideration of £120 paid by the grantees to the grantor on its execution, the receipt of which sum the grantor thereby acknowledged. In fact only £90 was paid to the grantor, £30 having been retained by the grantees for "interest and expenses." The execution of the deed by the grantor was attested by a solicitor, the attestation clause stating, in compliance with section 10 of the Act, that before its execution the effect of the deed was explained by him to the grantor. The attestation clause was at the foot of the deed, and immediately after it there came a receipt for £90, signed by the grantor, which stated that the £90, " together with the agreed sum of £30 for interest and expenses," made up the sum of £120, "being the consideration money within expressed to be paid" by the grantees to the grantor. The deed was registered. The grantor afterwards became bankrupt, and Mr. Registrar Hazlitt declared the deed void against the trustee, on the ground that the consideration for it had not been stated in it so as to satisfy the requirements of section 8, and this decision was affirmed by the Court of Appeal (james, Cjtton, and Lusn, L.JJ.) It was nrged on behalf of the grantees that the retention of the £30 by them was only a collateral arrangement between them and the grantor as to the application of a part of the consideration, and that, consequently, according to the decision of the Court of Appeal in Ex parte The National Mercantile Bank (23 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 clause, which was a part of the deed. The court, however, Baid that the deoision in Ex parte The JValional Mercantile Bank did not apply, because in that case the part of the nominal consideration which was retained by the grantor was retained in satisfaction of a debt existing independently of the transaction of loan, whereas in the present case the liability for "interest and expense*" arose ont of the transaction of loan which the bill of sale completed and rendered effectual. Such a retainer by the grantor was the very thing intended to be prevented by the Act. And the court held that the receipt oould not be looked at as supplementing or oorreoting the statement in the deed. It was not necessary that there should be any receipt, and moreover as it followed the attestation clunse, the statement in that clause, that the effect of the deed had before its execution been explained by the solicitor to the grantor, could not apply to the receipt, and therefore section 10 had not been complied with.—Solicitous, J. E. Beits; C. A. Swaine,
Principal And Agent—Commission Agents—ProCeeds Op Sale Of Goods—Account.—On the 15th inst. the Court of Appeal (james, Cotton, and Lush, L.J J.) affirmed the decision of Jessel, M R., in the ease of Kirkham v. Peel (28 W. E. 941). The question was whether the defendants, to whom the plaintiff bad consigned goods on commission for sale by them in India, they making him an advance of eightyfive per cent, on receipt of the goods, were hound to account to the plaintiff, not only for the prices at whieh the goods were sold by them, and the amounts received by them from tbe purchasers, and tbe sums allowed for commission and other outgoings, but also for their application of the proceeds realized by the sale of the plaintiff's goods in India, including an account of the purchase with these proceeds of any produce, and of tbe amounts realized by the sale of such produce. Tbe plaintiff alleged that the moneys realized by the sale of his goods belonged specifically to him, and that the defendants were trustees of them for him, and that he was entitled to any profits which the defendants had made by purchasing goods in India with these moneys, and afterwards selling those goods in England. The court, however, held that the relation of trustee and cestui que trust had not been created, and that the defendants were entitled to treat the moneys which they received from the sale of the plaintiff's goods as their own, being only liable to account to him for the balance of the proceeds of his goods, after deducting the advances which they had made to him.—Solicitors, Bower $ Cotton; Milne, Middle, <L Mellor.
Power Op Appointment—Exercise Bt Will—Death Op Appointee Before Testator.—In a case of Sperling v. Rochfort, before the Court of Appeal on the 5th inst., a question arose as to the effect of an appointment by will of real estate to the testator's executors, on trust for another person absolutely, in exercise of a general power of appointment by will, tbe beneficial appointee having died before the testator. The question was whether the appointed estate passed, as in default of appointment, under the instrument which had created the power, or whether it became part of the general estate of the appointor. Malins, V.C., hold that the presumption, which would have arisen in the case of an appointment of personal estate to the appointor's executors on trust for a beneficiary, that tbe appointor intended to make the fund part of his general personal estate in the event of the failure of the trust by the death of the beneficiary, did not arise in tbe case of real estate, and that the appointment bad consequently failed, and tbe property passed under the instrument creating the power. This decision was revorsed by the Court of Appeal (jessel, M.R., and James and Cotton, L.JJ.), who held that there was no reason for making any such distinction between real and personal estate. Tbe testator by exercising the power had shown an intention of defeating the original settlement and making the property bis own. And, the trust having failed by the death of the beneficial appointee before the testator, there was a resulting trust, not for the original settlor, hut for the appointor, and the property formed part of his general estate.—Solicitors, E. J. Miclcards; Milne, Riddle, cfc Mellor.
Administration Action—Costs—" Testamentary ExPenses."—In a case of Young v. Dolman, before the Court of Appeal on the 8th inst., a question arose as to the effeot of a direotion by a testator that his "testamentary expenses" shall be paid out of a particular fund. The testatrix in the cause bad by her will created two residues of her estate, the one consisting of impure, the other of pure personalty. Out of tbe latter she had made bequests to charities, and she had directed that out of the former should be paid her debts and funeral and testamentary expenses, and legacy and succession duties. Tbe action was brought by tbe person interested (subject to the charitable gifts) in the pure personalty against the execntor and trustees, for the administration of the estate. Hall, Y.C., held that the action had been properly brought, and by his order on further consideration he declared that by virtue of the will the coats of the action were charged upon and payable out of the impure personalty in exoneration of the pure personalty, and ordered the costs of all parties to be paid accordingly out of the impure personalty. Tbe executor was the person beneficially
interested in the impure personalty, so that the effeot of the order was to make him pay the costs of the action. He appealed from the declaration and consequent order as to the payment of the costs. Upon tbe heariDg of the appeal, tbe argument turned to a great extent upon the effect of the deoision of the Court of Appeal in Miles T. Harrison (22 W. R. 341, L. R. 9 Ch. 316); the cases which have since followed it, such as Harloe v. Harloe (23 W. E. 789, L. R 20 Eq. 471) ; Penny v. Pmmj (23 Solicitors' Jouhnal, 463, L. R 11 Ch. D. 440); and. Sharp v. Z«s7i(27 W. R. 528, L. R. 10 Ch. D. 468). It was said on the one side that the action had been improperlybrought, and that Miles v. Earrison did not lay down the rule that the costs of an administration suit are necessarily included under "testamentary expenses," where a testator has directed that such expenses shall be payable out of a particular part of his estate, with' out regard to the question whether the suit baa been properly instituted. On the other side it was said that, even if the action had been improperly brought^ which was denied, yet, having regard to tbe direction in the will, the costs of the action must, according to Miles v. Harrison, be charged on the impure personalty. Tbe court (james, Cotton, and Lush, L.JJ.) affirmed the decision of the Vice-Chancellor. During the argument James, L. J., suggested that, if an action was brought for the administration of a testator's will or for the clearing of bis estate from 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 for an alleged non-feasance or to make good an alleged misfeasance, the costs of it would not be "testamentary expenses," but ought to be paid either by the plaintiff or the defendant, and not thrown upon the owners of the estate. And in giving judgment James, L.J., said that be understood the effect of the decision in Miles v. Harrison to be that " testamentary expenses" would include the costs of such a reasonable and proper administration suit as would, in the absenoe of any direction by the testator, have been ordered to be paid out of bisgeneral residue. If the action was an improper one, tbe costs of it ought to have been ordered to be paid by the plaintiff personally, and the Vice-Chancellor having found that the action had been properly brought, in this view of the case the appeal was one for costs only. But so far as the facts had been brought before the court, his lordship saw no reason for differing from the Vice-Chancellor. If other persons had been interested in the impure personalty, it might have been a matter for consideration whether the defendant ought not to have been ordered to pay the costs personally, the action having been caused by his own improvident dealing with the fund. It was not necessary, under the circumstances, to decide whether the action was one, the costs of which ought, according to the authorities, to be thrown upon the particular fund indicated by the testator. Cotton, L.J., agreed that it was not necessary to decide whether the words "testamentary expenses" would include the costs of such an action as this, and that Miles v. Harrison did not decide that they 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, on the ground that in the present case the testator bad expressed an intention that the impure personalty was to be treated as if it had been general residue. James, L.J., added' that it must not be supposed that tho court in any way acceded to the suggestion that, because a testator had directed that his testamentary expenses should be paid out of a particular fund, anyone might get the costs of any administration suit whatever out of that fund.—Solicitors : E. B. Biggin; Chas. Oasguet; Hare $ Fell,
Particulars Of Demand—Common Law Action Jok Money.—In a case of Augustinis v. Nerinckx, before the Court of Appeal on the 5th inst., a question arose as to the power of the court to order a plaintiff to give particulars to the defendant of bis claim against him. Tho statement of claim in the action, which was brought in the Cbanoery Division, alleged that the defendant's testator, one G., had advanced moneys to one Crispin to enable him to carry on a litigation, and that G., being unable to supply all the money required by Crispin, applied*'to A., the plaintiff's testator, to supply the farther sums required, there being an arrangement between A. and G. that all sams contributed by them and lent to Crispin should be treated as a joint transaction, and that the money should be repaid to the lenders, respectively, when Crispin should establish his olaim to the property in respect of which he had brought his action. The plaintiff further alleged that A. in pursuance of this arrangement, during the course of Crispin's action, from time to time contribnted sums of money for the purpose of their being lent to Crispin, and that the total amount thus contributed up to the time of G.'s death was about £27,000. The plaintiff alleged that the defendant had recovered judgment against Crispin for £11,465 in respect of loans made to him by G., and that in Crispin's action a sum of consols had been carried over to a separate aocount in the defendant's name in satisfaction of the debt of £11,465. The plaintiff claimed a declaration that the sums advanced by G. to Crispin were transactions in which G. and A. were interested as partners ; that the amounts contributed by them respectively might be ascertained; that it might he declared that the plaintiff was entitled jointly with the defendant to the benefit of the judgment against Crispin, and to a proportion of the stock standing to the defendant's credit; or that the defendant was a trustee of the jadgment for the plaintiff to the extent of A.'s contributions, and that they might be paid out of the fund standing to his credit. On the defendant's application, Pollock, B., as Vacation Jadge, ordered the plaintiff to deliver to the defendant an account in writing, with dates and items, of the particulars of the sum of £27,000 mentioned in the «tatemeut of claim. This order was diaoharged by the Court of Appeal (jessel, M.R., and James and Cotton, L.JJ.). Jesskl, M.R., said that when an action, though brought in the Chancery Division, was really what would before the Judicature Act have been a common law action for a money demand, an order for particulars might be made now in the Chanoery Division just as it would formerly have been made by a common law oourt. But where, as in the present case, the aotion was really a chanoery action for an account, snob an order would not be made.— Solicitors, G. S. $ H. Brandon; KcighUy, Shea, ifc Bevait.
Coitpant—Preference Shareholder—Dividend Pay^ext orT Of Capital—Profits or Particular Year.— In a case of Dent v. London Tramways Company, before the Muter of the Bolls on the 16th inst., the plaintiff, who sued on behalf of himself and all other preference shareholders in the company, claimed a declaration that he was entitled to be paid a dividend in full for the half year ending the 3lat of December, 1878. According to the terms of the special resolution under which the preference shares were issued, they were to bear a perpetual dividend of six per cent, per annum over the ordinary shares of the company, "dependent upon the profits of the particular year only." The company, prior to 1S7S, had improperly dealt with their funds, and had paid dividends to their ordinary shareholders, instead of expending the amount in repair and renewal of their tramways. In Marob, 1879, in an action of Davison v. Gillies, Jessel, M.B., restrained the directors from paying the ordinary shareholders any dividend, on the ground that it was a payment out of capital. From a report of certain accountants, it appeared that the company had made a net profit in the year 1878 of more than sufficient to pay the interest on the preference shares. For the company it was contended that the preference shareholders were no more than the ordinary shareholders entitled to any dividend, and that the dividend should go to recoup the. amounts that should have been previously expended. Jessel, M.E., was of opinion that, according to the bargain made with the oompany, the preference shareholders were dependent for their dividends on the profits of each particular year only. If no profits were made in one year, and in the next the company made twelve per cent., they would still only be entitled in that year to their six per cent., and they were, so to say, co-adventurers with the ordinary shareholders for each particular year. Looking at the report of the accountants, he was of opinion that there was during the year 1878 an amount of profit fairly earned more than sufficient to pay the preference dividend in full, and that
that profit was properly estimated by taking the surplus of receipts over expenses, and by returning the capital to the state in whioh it was at the beginning of the year. He could not accede to the suggestion that because the ordinary shareholders had been previously improperly paid certain amounts the preference shareholders were now to be mulcted to make good those amounts which were to be expended in the repair of the tramways. He must therefore make a declaration that the plaintiff was entitled to be paid the dividend for the 31st of Deoember, 1878, out of the profits of that year.—Solicitors, King §Peto; Harrison, Beat, $ Harrison.
Company — Forfeiture Of Shap.es — Powers Of Directors—Reduction To Less Than Quorum.—In the case of Re Alma Spinning Company, befere the Master of the Bolls on the 15th inst., a summons was taken out by the liquidator of the company for a declaration that one Bottomley was not entitled to be registered as the holder of 250 shares in the company, and that the assets might be dealt with as if such shares had been forfeited. In 1877, Bottomley was tha registered owner of 250 shares in the Icompany, and was also a director. In October. 1877, a resolution for the liquidation of his affairs by arrangement was passed and a trustee appointed. The assets of the company were then of little value, but, on the 16th of October, 1878, a fire took place of the property of the company, and the insurance moneys produced sufficient to enable a return to be made to the shareholders, and in December, 1878, a resolution for the voluntary winding up of the company was duly passed. Shortly after Bottomley's liquidation the directors of the com. pany called upon him and bis trustee to pay some calls on the 250 shares, and subsequently, in consequence of the non-payment of the calls, they forfeited the shares under certain clauses of the company's articles of association. By other olauses of the articles it was provided that the business of the company should be conducted by not less than five, or more than seven, direotors, and that a director should vacate his office if he held less than twenty shares, or if he became bankrupt or insolvent. At the date of Bottomley's liquidation (here were only five directors, including himself, and the vacancy caused by his insolvency had not been filled up, hut by some informal proceedings, altering the articles, the directors had purported to reduce the minimum of the directors to three. It was contended by the respondent that the proceedings forfeiting the shares were null and void, as there were not sufficient directors to conduct the business of the company according to their articles. Jessel, M.R., said that the meaning of the clause as to the number of direotors was plain, and no argument of convenience could avail where, as here, the article was not doubtful or ambiguous. He conld not, therefore, hold that the clause was directory only, and not binding. A maximum and minimum number of directors was fixed, and it was necessary that their number should always be between those limit9. The directors, therefore, in bis opinion, had not the power to make the culls or enforce them, and the forfeiture was accordingly null and void. The benefit of sharing in the assets could not, however, be allowed without the calls beiug first paid up. He therefore dismissed tbe summon?, the respondent undertaking to pay the sum demanded by the liquidator in respect of the unpaid calls.—Solicitors, Milne $• Co.; Phelps, Sidgtcicl; $ Biddle.
Municipal Corporations Act, 1835, s. 52—DisQualification Of Alderman—Compounding By Deed— Debtors Act, 1869, s. 2t—Composition With Creditors. —In a case of Aslatt v. Mayor and Corporation of Southampton, before the Master of the Bolls on the 8th inst., a motion was made to restrain the defendants, the borough town council, from avoiding or declaring void the office of alderman of the borough bald by the plaintiff, and from appointing or electing any successor to him and interfering with his rights and privileges ns an alderman. The plaintiff in January submitted a proposition to his creditors for a composition on their debts, and this com position was accepted by a certain number of the creditors by a resolution and by a oircular letter. The plaintiff did not execute any composition deed, and had not taken any proceedings under the Bankruptcy Act, 1869, for an arrangement or composition with his creditors. He had, however, executed a bill of sale in which he admitted, in cross-examination, that the consideration waa stated to be the finding of money for the purposes of his composition. The defendants had not taken any step to avoid the office until the 4th inst., when, in consequence of the death of another aldermaD, the mayor called a meeting of the corporation to be held on the Sth inst., at half-past two, to 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 virtU9 of the Municipal Corporations Act, 1835, s. 52, by which any alderman who shall "compound by deed with his creditors shall immediately become disqualified, and shall ceaBe to hold the office of alderman, and the council shall forthwith declare the office to be void and signify the same," as therein provided. By the Debtors Act, 1869, the disqualification is extended to any person who has been declared bankrupt, or arranged, or compounded with his creditors under the Bankruptcy Act, 1S69, whether by deed or otherwise. For the defendants on the motion it was argued that the plaintiff had in effect "compounded by deed" with his creditors, and that his case was, at all events, within the mischief intended to be prevented by the above disqualification. It was further argued that the Master of the Rolls had no jurisdiction to entertain the case, which should have been brought by someproceedingin the Queen's Bench Division. Jessel, M.R., said that the case was one of groat importance, and he should have been glad if it had been possible to have had further time to consider the point. As the meeting had, however, been called for that day, he was compelled to decide it at once, and his decision must, to a great extent, bo a final one nnder the circumstances. If any miscarriage did occur, the defendants were only to blame for not having brought the matter to an issue previously. In his opinion, what the plaintiff had done was not a " composition by deed " within the meaning of the Municipal Corporations Act, 1835, s. 52, and it could also not be said to be an arrangement or composition nnder the Bankruptcy Act, 1869. He was bound, as the sections were penal, to construe them strictly, and whatever he might think was the spirit of the Acts in question, technically the plaintiff was not liable to the penalties imposed thereby, and he had not therefore ceased to hold office, and the defendants were not justified in impeding him in the exercise of his duties. He was further of opinion that, whatever power the old Court of Chancery might have had in a case like the present, he now had ample jurisdiction, under section 25 of the Judicature Act, 1873, to grant an injunction in all cases for the protection of a legal right or the prevention of a threatened wrong, where it was "just and convenient" so to do. He also thought that this action was not one of those assigned to the Queen's Bench Division, and, even if it had been, he still considered that he bad jurisdiction to interfere where, as here, his inteference was imperatively demanded, and where, if he refused to hear the application, it wonld, in effect, be a denial of justice. He therefore granted an injunction restraining the defendants frcm avoiding the office of alderman, and from interfering with the plaintiff in his duties and privileges thereof. By consent this injunction was made frpetual, with costs.—Solicitous, Stocken $Jupp; Walker, clward, <0 Wldljield.
Poor Kate—Assessment—Land Vsed Foe A PlantaTion Or A "wood—Bights Of Sporting.—In a case of Byton v. Orerseers of Mold, which came beforo the Queen's Bench Division on Saturday last, on a special case by way of appeal against a pocr rate, the question raised was whether in rating land used fcr a plantation or a wood, and not for the growth of saleable underwood, but used also as a game preserve, the right of sporting which remained in the occupier and owner could be taken into account in the assessment value. Counsel for tho appellant contended that, as before 37 & 38 Vict. c. 54, such woodland was not rateable, section 11 of that Act must be strictly construed; that under sub-section (a), where land is used only for a plantation or a wood, the value is to be estimated as it the land were let and occupied in its natural and unimproved state; and that in estimating its value in the natural and unimproved state a right of sporting ought not to bo included; and that the word " only " did not exclude tho use of the land for sporting, but was meant to exclude the other uses of the land mentioned in the same section, in sub-sections (4) and (<•), as for saleable underwood. The court (field snd Manisty, JJ.) held that the general principles of
rating required the sporting rights to be assessed unless the Act expressly provided otherwise, which they held, negativing the appellant's contention, it did not. They therefore gavejudgment for the respondents.—Solicitors, Simpson, Hammond, & Co., for Kelly Sf Keene, Mold.
Practice—Costs—Claim Within Admiralty JurisDiction Of County Court—31 & 32 Vicr. c. 71, ss. 3, 9.—Judicature Act, 1873, s. 67—Judicature Act, 1875, 8. 33, Sub-section 2—Order 55.—In the case of Tennant v. Ellis, before the Queen's Bench Division on November 15, the question was raised in an action within the county court admiralty jurisdiction brought in the High Court and tiied before a judge and jury, whether the plaintiff, in the absence of a certificate of the judge is deprived of his costs under sections 3 and 9 of 31 & 32 Vict. c. 71 (the County Courts Admiralty Jurisdiction Act, 18C8), as he would have been before the passing of the Judicature Acts, or is entitled to them under Ord. 55, as interpreted in, the recent decision in Qarnett v. Bradley (26 W. R. 698, L. B. 3 App. Cas. 944), which practically decided that under section 33, sub-section 2, of the Judicature Act, 1875, all Acts inconsistent with order 55 as to costs were repealed, subject of course, as stated in order 55, to the provisions of the Act, seotion 67 of which (i.e. the Judicature Act, 1873) applies oertain sections, 5, 7, 8, and 10, of the County Courts Act, 1867, to actions and proceedings in the High Court, but there is no similar provision relating to sections 3 and 9 of the County Courts Admiralty Jurisdiction Act, 1868. The plaintiff here had recovered £73, the full amount claimed ia a claim within sub-section 3 of section 3 of the latter Act,, which section enables the county court to give relief where such claim does not exceed £300- The master had refused to tax. The court (field and Manisty, JJ.) made the order upon the master to tax the plaintiffs costs, holding that the sections and order of the Judicature Acts cited were inconsistent with, and therefore repealed so much of, sections 3 and 9 of the County Courts Admiralty Jurisdiction Act, 1868, as would have deprived the plaintiffs of their costs in this action.—Solicitors, F. W. $ H. Rilbery ,Mark Shepliard.
Registration— Bcrough And County Votes—QualiFication—Reform Act (2 Will. 4, c. 45), ss. 25, 27
Sanders v. Searson, which came before the Common PleasDivision on November 13, was an appeal from a decision of the revising barrister for the Northern Division of Northamptonshire. Since 1869 the respondent had occupied a piece of land at Peterborough, under Mr. Fitzwilliam, at a rent giving him a right to vote as a £12 occupier under the Representation of the People Act, 1867. Some years afterwards, the respondent took a house in Peterborough, under the same landlord, and having occupied it ever since, has a vote for the borough. After taking the house, the respondent took another piece of land in Peterborough, under the same landlord, which was also rated at more than £12. The two pieces of land are apart from each other, and both are more than a mile from the house occupied by the respondent, and in respect of which he votes for the borough. Each parcel was held at a separate rent, and it was admitted that a separate notice to quit would be required for each property. The appellant objected to the respondent's name being retained cn the list of voters, on the ground that each of the pieces of land was occupied '' together with" the house within the meaning of section 25 of the Reform Act, and that the respondent was thereby precluded from voting for the county. The respondent contended that his occupation of the two pieces of land was distinct from that of the house, and that he was entitled to a vote for the county. The court (grove, Lindley, anc" Lopes, JJ.), in affirming the decision of the revising barrister, were of opinion that the words "together with" did not mean contiguity of situation, nor at the same time, but nnder one occupation, as when a garden is attached to a house in which the voter lives. They considered that the two pieces of land in this case were held distinct from the house, and entitled the respondent to a vote for the county. The appeal was dismissed with costs.—Solicitous, Clark, Rawlins,, <£• Clark?, for Perceval <£• Son.
BEFORE THE BANKRUPTCY
Brougham (acting as Chief
Not. 11.—Ex parte Stuart, Re Margrave.
resolution for liquidation by arrangement has been : into the office and filed, the court will not allow a It to ngn it, notwithstanding the fact that the omission to sign hat arisen through inadvertence.
This was an application on behalf of Mr. Wm. Stoart for leave to sign a reaolution for liquidation by arrangement, which had been brought into the office and filed.
Oo the 6th of October the debtor presented a petition for liquidation nnder the 125th and 126th sections of the Bankruptcy Act, 1869. The first meeting of oreditors took place at the Guildhall Coffee House, in the City of London, on the 5th of November, when Mr. Stuart attended the meeting as a creditor for £28 Is. 6d., and as proxy for Eliza Ward, a creditor for £168 6». 8d.
Mr. Stuart stated in his affidavit that at the meeting he proposed a resolution for liquidation by arrangement and voted for it, but through inadvertence he omitted to sign, at he had to leave the meeting to attend another appointmeat while the other creditor! were signing it. He now deaired to sign the resolution on his own behalf, and as proxy for Eliza Ward.
The debtor's solicitor also deposed that be attended the meeting at which a resolution was passed by the creditors for liquidation bv arrangement, and he was appointed to file such resolution. Mr. Stuart attended the meeting on his own behalf, and as proxy for Ward, and proposed the resolution, and voted in favour thereof, and was to have signed the same, bnt left in a great hurry. Saturday and Sunday intervened, and on Monday his clerk filed the resolution, and it was not then noticed that Mr. Stuart had not signed as promised by Lim.
It appeared that twenty-seven creditors, whose debts amounted in the aggregate to £910 14s. 4d., were present at the meeting-, either personally or by proxy, and of these twenty-four, representing a total of £668, voted in favour of the reaolution; but, without the vote of either Mr. Stuart or E. Ward, the resolution was lost, a sufficient statutory majority not being obtained. After the papers had been brought into the office and filed, it was discovered that the resolution had not been signed by Mr. Stuart, and he applied to the authorities to be allowed to sign, but the chief clerk (Mr. Penn), npon the authority of Ex parte Thome, Re BMn (21 W. R. 763, L. B. 8 Ch. App. 722), declined to allow him to do so.
Bnugh, in support of the application.—Ex parte Thome, RtButitn, is distinguishable, because in that case the creditors had voted against the reaolution, and applied afterwards for leave to sign a resolution in favour of it. Here the creditor proposed the resolution, and the omission to sign has arisen through inadvertence. In Ex parte Thome there were pro'-ediagsin bankruptcy pending, which is not the case here. He also cited Rc Wehner (20 W. B. 199).
Mr. Registrar Bbocgham said he did not think he could make any order in this case. He thought the principle of Ex parte Thome applied. No doubt the creditors in that ease had voted against the resolution, but they changed their muds and desired to sign the resolution, and they accidentally omitted to do so before it was filed. James, L.J., said, "It would open the door to great fraud and serious inconvenience if, after the resolution had been taken to the office, any person might go in and ask to be allowed to sign his name to it." The application must be refused.
Solicitor, W. S. Marshal.
Before Mr. Registrar Brougham (acting as Chief Judge). 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.
This was an application on behalf of Messrs. Robert Beart & Sons for an order that an injunction granted ex parte on the 3rd of November ins'., restraining the applicants, and Mr. W. B. Hoggins, and the sheriff of Essex from taking any further proceedings upon the judgments recovered by them against the debtor in the Exchequer Division of the High Court of Justice until after the 23rd inst., should not apply to,
or have any operation upon, a writ of elegit issued in an action in which the applicants were plaintiffs, and the liquidating debtor was defendant; and that, to thnt extent, the injunction should be discharged.
On the 29th of October, 1880, the applicants recovered judgment against Arthur Mitchell, then carrying on business as a builder, for the sum of £253 7s. 5d., and on the same day a writ of elegit was issued by the applicants, and lodged with the sheriff of Essex. Mr. T. W. Hemming, solicitor, and acting also as managing clerk to the solicitors for the applicants, in an affidavit used in support of the application, said the sheriff of Essex entered into possession, he believed, of the debtor's property on the 30th of October, under the writ of elegit.
On the 2nd of November, Mitchell presented a petition to the London Court of Bankruptcy for liquidation by arrangement, and on the following day the court appointed a receiver, and ordered that the applicants and W. R. Huggins, and the sheriff of Essex, should be restrained from taking further proceedings upon the judgments recovered by them until after the 23rd inst. On the 3rd the restraining order was served on the applicants, and also on the sheriff of Essex. The sheriff was also served with two notices of claim by A. H. McBean, dated the 3rd of November. Upon receipt 0 f such notices the sheriff caused an interpleader summons to be issued, which was heard on the 11th, when the master stated that it was not in his power to adjudicate on the summons while the restraining order was in existence, and he adjourned the summons until after the expiration of the order.
Notice had been given by the sheriff that the hearing and inquiry under the writ of elegit would take place at the Shire Hall, Chelmsford, on the 15th inst., and he had summoned a jury for that purpose ; and the applicants alleged that if the inquiry was not held on that day, they would be put to the extra expense of paying the sheriffs officer during tho time that he might continue in pessession, and their title might also be injured by the delay. It further appeared that proceedings had been instituted by the applicants in the Chancery Division to enforce their judgment by obtaining equitable execution of the chattels real of the debtor.
JET. Tindal Atkinson, for the applicants, contended that the injunction should not have been granted in its existing form, and he asked that, so far as it related to the proceedings under the elegit, it should be dissolved. Ex parte Gourlay (49 L. J. Bkcy. 23), showed that a creditor in the position of the present applicants was a secured creditor. Probably, if the actual facts had been brought before the registrar, the order would not have been made.
Finlay Knight, for the receiver.—The evidence in support of the application is insufficient, because the solicitor's clerk only states his belief that the Bheriff seized on the 30th of October. The application is made nearly a fortnight after the injunction was granted, and it is therefore too late. Ex parte Gourlay, when before the Court of Appeal, stood over for further evidence in regard to the steps which had been taken under the writ. In the present case the receiver did not know what had been done under it except this, that the sheriff having received notice of claims by another person had taken out a summons to interplead.
Mr. Registrar Brougham said the only question was whether there had been a seizure by the sheriff. If the execution creditors had an imperfeot title, the receiver objected to their making it perfeot. The injunotion would be dissolved upon an undertaking by the applicants not to proceed with the inquisition or to enforoe their judgment by further proceedings in the Chancery Division until after the first meeting of creditors. There had been some delay in making this application, which was not altogether fair to the receiver.
Solicitors for the applicants, Remnant, Penley, # Grubbe, for Hunnibun $ Son, Huntingdon. Solioitor for the receiver, A. R. C. Oldman.
Before Mr. Registrar Pepys (acting a3 Chief Judge). Nov. 16.—Ex parte Zotering, Re Simon: Assignment of book-debts by undischarged dentors to a surety for payment of a composition under section 23, and to another person, set aside, notwithstanding the fact that payments have been made by the assignees to the debtors subsequently to the resolutions for the purpose of enabling them to continue their business.