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CASES OF THE WEEK.
Will — Construction — Conditional Legacy —MarT.iaoe With Consent Of Guardian Or GuardiansDeath Op Sole Guardian Appointed By Will.—In a case of In re Brown's Trusts, before the Court of Appeal on the 13th inst., a qnestion arose as to the non-fulfilment of the condition upon which a legacy had been given. A testator, by bis will, appointed his wife sole guardian of his children during their respective minorities. And he bequeathed the sum of £5,000 to each of his daughters, " upon her attaining the age of twenty-one years, or on her marriage with the consent of her guardian or guardians, which should first happen." The widow died before one of the daughters attained twenty-one, and this daughter married under twenty-one without the consent of any guardian, none having been appointed after the death of the widow. The daughter died under twenty-one. The question then arose whether the daughter's representative was entitled to the legacy. Fry, J., held that, as a guardian might have been appointed, the performance of the condition bad not become impossible, and that, as it had not been complied with, the legacy had lapsed. This decision was Hffirmed by the Court of Appeal (james, Baggallay, and Lush, L.JJ.). It was contended that the case was governed by Dawson v. Oliver-Massey (24 W. R. 993, L. R. 2 Ch. D. 753), in which a legacy was given to an infant, "upon her attaining twenty-one or marrying with the consent of her pareiits," and, after the deatb of one parent, the infant married with the consent of the surviving parent, and the Court of Appeal held that this was a sufficient compliance with the condition, it having become impossible, by the act of God, and without any default on the part of the legatee, to obtain the consent of both parents. So in In re Brown's Trusts it was urged that, there being no guardian in existenoe at the time of marriage, and the will not having pointed ont any mode of appointing guardians, a strict compliance with the condition had become impossible. James, L.J., said that the real question was whether the principle of the decision in Dawson v. Oliver- Matscy applied. When parents were dead it was impossible to supply their place.Jbut there was no such impossibility of supplying the place of guardians, and thetestator, in using the words " with the consent of her guardian or guardians," evidently contemplated that guardians of the infantswould be appointed in the event of the death of the mother. It would have been the easiest thing possible to obtain the appointment of guardians by the court. A guardian appointed by the infant herself to consent to her marriage would not be a guardian within tbe meaning of the condition. It would be an unwarrantable extension of Dawson v. Oliver-Massey to hold that the temporary non-existence of a guardian was equivalent to the non-existence of parents. Bagoallay, L.J., said that, having been a party to the decision in Dawson v. Olirer-Massey, he entirely agreed with the distinction which had been drawn between that case and the present. Lush, L.J., said that if, after appointing tbe mother sole gnardian of the children, the testator had said that the daughter's marriage must be with the consent "of her said guardian," it would have been impossible after the death of the mother to comply with that condition. But the testator had not done this; on the contrary, lie had clearly contemplated the existence of a guardian or guardians other than the mother.—Solicitors, Emmet, Son, tt- Stubbs; Simpson, Hammond, S; Co.
Illegal Consideration—Compoundinu A Felony— Stifling A Prosecution—Deposit Of Title Deeds.—In u case of Whitmore v. Farley, before the Court of Appeal on the 14th inst., a question arose with regard to tbe validity of an agreement upon the terms of which a criminal prosecution had been withdrawn. The plaintiff bad deposited some securities with a broker, and she afterwards brought a charge against him before a magistrate of wrongfully converting the securities to his own use. After the charge had been partly beard, the wife of the broker endeavoured to induce the plaintiff to withdraw from the prosecution, and ultimately, on the morning of the day fixed for the further hearing of tbe charge, an agreement wa9 come to that tbe prosecution should be withdrawn if the consent of the magistrate could be obtained, and that the
broker's wife should charge her separate estate with the amount of the loss which the plaintiff bad sustained through the broker's misconduct. When the case was called on tb* magistrate was informed of the terms of the agreement^ and he gave his sanction to the withdrawal of the prosecution, and the defendant was discharged. In pursuance of the agreement some title deeds of separate estate of tbe wife were deposited with some bankers. The wife afterwards declined to carry out her agreement, and tbe action was brought claiming a charge on her separate estate. No objeotion to the legality of the agreement was raised by the pleadings, but Fry, J., held (28 W. R. 908, 24 SoliciTors Journal, 691) that the agreement, being for tbe compounding of a felony or tbe stifling of a criminal prosecution, was contrary to public policy and illegal, and that it oould not be enforced. And he held that the wife was entitled, as between herself and the plaintiff, to the return of the deeds, for which she had delivered a counter-claim, though he could only make a declaration of the right, and could not make an order for the return of the deeds, became there was a prior mortgage of the property, and the holder of that mortgage was not a party to tbe action. This decision was affirmed by the Court of Appeal (james, BagOallay, and Lush, L.JJ.), who said that it was immaterial that the agreement had been made in court with the sanction of the presiding magistrate. Such a sanction could not give any legality to that which was in itself an illegal act. It was objected that by making a declaration as to the title deeds, the court was affording active relief to one of the parties to the illegal agreement. Bnt the court said that the declaration was the logical result of the dismissal of the plaintiff's claim. If the plaintiff had not acquired a valid charge on tbe property, it followed that the wife, being entitled to the property, free from any charge in favour of the plaintiff, was entitled to the deeds. Lush, L.J., said that compounding a telony was not only an illegal, but a criminal act, rendering the person who attempted it liable to punishment, and it followed that every agreement by which a person in consideration of a private benefit to himself consented to withdraw from a charga of felony waB illegal and could not be enforced. There was no legal obligation on a man who had been wronged to prosecuto the wrongdoer, but, if lie did institute a proaecntion, then he acted on behalf of the public, and would not be allowed to enter into any bargain not to continue the proseontion. — Solicitors, F. Bradley; Remnant, Petiley, 4' Orubbe.
Srt-off—Army Agent—Sale Of Officer's CommisSion.—In a case of The Duke of Roxburgh* v. Cox, before the Court of Appeal on the 13th inst., a question arose as to setoff. An officer, who desired to retire Irom the army, applied to the Army Purchase Commissioners to purchase his commission. Tbe purchase-money was deposited by tbe Commissioners with the bankers, who acted as their agents, to be paid by them to the officer on his retirement being gazetted. The bankers had also acted as the bankers of tbe officer, und there was a balance due from bim to them on his current account. The bankers claimed a right to retain this debt out of the purchase-money, and Bacon, V.C., held that they were entitled to do so by virtue of their banker's lien. On. tbe appeal it was contended that no banker's lion could exist, inasmuch as tbe bankers did not hold the purchase-money as tbe officer's bankers, but as trustees for him. The Court of Appeal (james, Bagoallay, and Lush, L.JJ.) held that both the demands —that of the officer against tbe bankers, and that of the bankers against him—were legal demands, and that the one could be set off against the other, and on this ground 'they supported the decision of the Yice-Chanoellor.—Solicitors, IF. 4; A. Ranken Ford; Fladgattr Smith, # Fladgate.
Bankruptcy — Letters Addressed To Bankrupt — Application For Rk-direction—Locus Standi—BankRuptcy Act, 1869, s. 85.—In a case of Ex parte Lister, before the Court of Appeal on the 12th inst., a question arose as to the locus standi to apply for an order for the redirection of letters addressed to a bankrupt. Section 85 of the Bankruptcy Act, 1869, provides that " the court, upon tie application of the trustee, may, from time to time, order that, for such time as the court thinks fit, not exceeding three months from the date of the order of adjudication, post letter* addressed to tbe bankrupt at any place or any of the places mentioned in the order, shall be re-directed, sent, or delivered by the Postmaster-General, or the officers acting under him, to tbe trustee, or otherwise as the court directs, and the same shall be done accordingly." An adjudication bad been made against two of three partners who bad traded in England. Tbe third partner was resident abroad, and had never been within the jurisdiction of tbe English Bankruptcy Court. A receiver had .been appointed, but no trustee had been chosen, and one of the registrars was acting as trustee. Upon the application of tbe registrar trustee and of the petitioning creditor, another of the registrars, acting as Chief Judge, ordered that nil post letters addressed to the bankrupts at their place of business should be re-directed, sent, or delivered to the receiver. The petitioning creditor applied to the registrar to vary this ordtr, on the ground that it ought to have dealt with all letters addressed to tbe bankrupts in the name of the firm under which they had traded. The registrar trustee declined to join in the application, being of opinion that the variation asked for would not be authorized by section 8j. The registrar refused the application. The petitioning creditor appealed, and the registrar trustee declined to join in the appeal. The Court of Appeal (james, Baggallay, and Lush, L.JJ.) dismissed the appeal, on tbe ground that such an order can, by section 85, be made only on the application of the trustee. They said that possibly the petitioning creditor might obtain authority to use the name of tbe trustee.—Solicitous, S. S. Seal; Aldridge.
Principal And Surety—Judgment Against Principal DiBTou—Kights Of Creditor Against Surety.—In a case of Ex parte Young, before tbe Court of Appeal on the 12ch iu-i.. the question was raised whether a judgment or award against a principal debtor is binding on or is evidence against tbe surety in an action against him by the creditor. It was stated by counsel that no English authority was to be found on the point, but that it had been decided by the Amerian courts that the surety is not bound, reference being made to a decision of the Supreme Court of New York in the case of ef Douglas v. Rowland, 24 Wendall, 35. The question arose thus:—An agreement had been entered into between a firm of English wine merchants, consisting of K. and M., with a firm of wine growers in Germany, for the supply of winos by tbe latter to the former, the English firm binding them■selves to take a certain quantity of wine yearly. Afterwards E. retired from the English firm, and was succeeded by W. The German firm objected to continue the arrangement with the new English firm, unless K. would guarantee the due performance ot it by them. K. then wrote a letter to tbe German firm, by which he requested them to treat the -original agreement as made between the new English firm and themselves, and in consideration thereof he undertook -and guaranteed that all wines supplied by them to the new firm should be duly paid for, and that the agreement should, in other respects, be duly performed by the new firm. Upon this guarantee being given, the German firm continued the supply of wine to the new English firm. TheGerman firm afterwards complained that the new English firm had not taken the quantity of wine which they were bound to take under tbe agreement, and they claimed a reference to arbitration under an arbitration clause contained in the original agreement. Tbe arbitration took place and the arbitrator awarded £1,250 damages, to be paid by the new English firm to the German firm, for breach of contract. The amount awarded was not paid, and tbe German firm claimed to prove for the amount against tbe estate of K.,who had meanwhile filed a liquidation petition. The court (james, Baogallay, and Lush, L.JJ.) held that the proof could not be admitted for that amount. James, L.J., said that the meaning of the guarantee was that, if the new firm did not perform the agreement, the guarantor would be liable in an action against him for any damages which the German firm could show that they had sustained by the default. If he was to be liable for any amount which an arbitrator between the parties to the agreement might fix as the amount of the damages, this ought to have been expressed in the clearest language in the guarantee. It was clear that in an action against a surety no admission of liability made by the principal debtor to the creditor would be evidence against the surety. And, if tbe surety was not bound by anysuch admission, itwould be monstrous if he were to be bound by the mode in which the creditor and the princi
pal debtor chose to ascertain the amount of the liability. Lush, L.J., said that the guarantor had not undertaken to be liable for such an amount as an arbitrator might find to be due by the principal debtor to the creditor. If there had been a verdict by a jury for the amount due from the principal debtor to the creditor, it would have been no evidence as against the surety of the amount due. The creditor must have proved the amount due over again as against the Eurety. He was only liable to pay what should be found due as against him. There must be specific words in tbe guarantee in order to make the guarantor liable to pay whatever might be awarded by a third person, whether an arbitrator, a jury, or a judge. If the surety insisted on it, the amount due must be proved against him just as against the principal debtor. The proof against the principal debtor was ret inter alios acta, and did not bind the surety.— Solicitors, Hindson, Miller, <fc Vernon; Stibbard, Gibson, # Co.
Vendor And Purchaser—Restrictive Covenant— Lea9e—Notice Op Lessor's Title—Vendor And PurChaser Act, 1874, s. 2, Sub-skction 1.—In a case of Patman v. Harland and Bennett, before the Master of the Kolls on the 13th inst., a motion was made to restrain the defendants from erecting a building to be used as an art studio in breach of a covenant contained in a former conveyance of the property. The property in question was sold and conveyed by the plaintiff to tbe predecessor iu title of the dtfendant Harland, subject to the covenants and conditions contained in an indenture of the 25th of October, 1876, and, amongst others, to a covenant not to erect any building upon the said property other than a private dwelling-house. A private dwelling-house had been duly erected upon the property in question, but the defendant Bennett had recently commenced to erect at the side of the house a corrugated iron structure not attached to the house, intended to be used as an art studio in connection with an ait college for ladies carried on in the house. The defendant Harland bad leased the premises to the defendant Bennett, and had expressly covenanted with the latter that she Bhould make the erection in question. The conveyance to Harland was made expressly subject to the indenture of the 25th of October, 1876. The plaintiff uow moved for an injunction to restrain the erection of the proposed studio. For the defendant Harland it was contended that he was not a necessary party to the motioo, and that the erection would not be a breach of the covenant. Eor the defeudant Bennett it was contended that she had not constructive notice of the covenant, as she was expressly told she bad liberty to make the erection iu question, and reliance was placed upon the dicta of Turner, L.J., in Wilson v. Hart (L. R. 1 Ch. 463). Jessel, M.R., was of opinion that a lessee who took a lease had constructive notice of his lessor's title, and Lord Eldon had treated such a doctrine as settled law in his time, and it had not been disturbed since, and in fact there was no difference as to notice whether a man took by purchase or under a lease. A man who purchased or leased was bound to investigate his vendor's or lessor's title, and he was held to take with notice of that title, and was bound to inquire what that title was. Of course that meant reasonable inquiry, and a purchaser or lessee was not simply limited to the conveyance to his vendor or lessor, but must go buck during the usual length of. title. In the present case if only the conveyance to Harland had been seen, the lessee would have seen that the property was subject to the restrictive coveuants. It had, however, been argued that if » lessee having constructive notice were told by his lessor that there was no restrictive covenant, that would do away with the effect of constructive notice, but he entirely dissented with that doctrine. If a person had notice of a deed relating to the title, he had notice of the contents, and it was no excuse for not asking to look at the deed that he was told it contained nothing necessary to be seen. There might, no doubt, be cases where a deed could not be seen, and where there might be no constructive notice, but that was another question, and when a person had constructive notice it was no answer to say he had been told a certain deed did not prejudicially affect the title. If a person knew a deed affected the title, he was hound by its contents. There was a class of cases, of which Jones v. Smith (1 Hare, 43) was the most notorious, in which it was held that if a mau was told of a deed which might or might affect the title, and was told at the came time it did not affect the title, he would not in such a case have constructive notice of its contents. The instance he alluded to was where a purchase was made of a married man, and the purchaser was told the vendor had made a settlement on his marriage, which, however, did not affect the property sold. No doubt some difficulty had arisen from some observations of Turner, L. J., in Wilton v. Hart, but those observations could not alter the settled law on the suhjeot. He was also of opinion that the Vendor and Purchaser Act, 1874, s. 2, sub-section 1, did not alter the law, it only did away with that necessity for a stipulation on the point which had previously been the practice, and, in his opinion, the effect was tbo same as if a lessee had expressly bargained not to look at his lessor's title. On the merits he was of opinion that a breach of the restrictive covenant had occurred, and therefore be granted an injunction nntil the trial to restrain the completion of the building. He would not now grant a mandatory injunction to pull down the building (although it was stated it could he done in a few hours), as it might be the building would be so altered before the time as to he uved as an adjunct to the dwelling-house. There would be no injunction against the defendant Harland, and the costs would be costs in the action.—Solicitors, W. H. Bennett; John Mackrell §• Co; Edicard Newman.
Practice—Attachment—Debtors Act, 1869, s. 4, SubSection 3—Default By Person In Fiduciary Capacity. —An application to enforce an order for leave to issue an attachment was made to Hall, V.C., on the 14th inst., iu an administration action of In re Spieer, Spieer v. Spieer. An order bad been obtained in the action requiring the defendant, who was the executrix of the estate being administered, to pay into court certain moneys belonging to the testator's estate, the amount to be verified by her upon affidavit. The order bad not been complied with, and an order for leave to issue attachment against her had been obtained. The registrar, however, had refused to draw up the order, on the ground tbat no sum was specified in the order, and the case was not within the exception of section 4, subsection 3, of the Debtors Act, 1869, whereby arrest and imprisonment for default have been retained in the case of a person acting in a fiduciary capacity, "and ordered to pay by a court of equity any sum in his possession or under his control." The present application was that the order might be drawn np, notwithstanding the objection, bnt Hall, V.C., held that the exception in the Debtors Act must be construed strictly, and that, as the real contempt consisted in not making the requisite affidavit, the order ought not to go, and the application must, therefore, be refuted.—Solicitors, Sole, Turner, 4- Knight.
Pbactice—Partition Act, 1876—Request For Sale— —Married Woman—Form Of Request.—In a partition action of Grange v. White, before Hall, V.C., on the 14th inst., in which an order for sale instead of partition was desired by the parties, one of the parties interested was a married woman, who had been made a co-plaintiff with her husband. The direction of the court was asked as to the form in which her request should be made. Section 6 of the Partition Act, 1876 (39 Ac 40 Vict. 0. 1"), provides that the request may be made on tbe part of a married woman by the next friend, "or other person authorized" to act on her behalf, and in Crookes v. Whitworlh (27 W. R. 149) a married woman's request was made by ber counsel authorized to act on her behalf. However, in Wallace v. Greenwood (43 L. T. N. S. 720), Jesse], M.R., said that the request of counsel was not sufficient under the Act, and that it must be made by some person specially authorized to act on her behalf in the action. Hall, V.C., held that, to put the matter in proper form, the married woman should ''authorize and request A. B. (her solicitor) to instruct counsel to request a sale."—Solicitors, Burton, Yeatet, <fc Hart.
Will—Construction—Legacy—Vesting—"fa Table." —In a case of 1'arlridgt v. JJaylis, before Fry, J., on the 13tb iDSt., n question arose Sb to the vesting of Borne legacies. A testator gave a fund to trustees, upon trust to pay the income thereof to his daughter for her life, and after her death upon truBt to pay and divide £2,000, part of the fund, unto and equally between all and every the child and ohildren of the daughter as and when they
should attain twenty-one, and in case any or either of the ohildren should die before his, her, or their share or shares thereof should beoome "payable aa aforesaid," without leaving a child or ohildren, the testator directed that the share or shares of him, her, or them so dying should go to the survivor or Burvivors, equally if more than one, and if but one, the whole to that one, with full power for tbe trustees during the respective minorities of the child or children, to pay and apply tbe interest of his. her, or their expectant share or shares for and towards his, her, or their maintenance, education, and support. And in oase all anoh ohildren should die under twenty-one, without leaving a child or children, npon trust as the mother should appoint, and in default of appointment on trust for the next of kin of the mother. The daughter had four ohildren who attained twenty-one. Three of them died before the mother, two without issue, the third leaving issue. On the death of the mother the question arose whether the sharea of the ohildren had vested at twenty-one, or whether, as the first gift over was in tbe event of their dying without issue before their shares became "payable as aforesaid,'' and the shares oould not become payable nntil after the death of the mother, was the tenant for life, the shares of the two ohildren had died before their mother without issue had gone over to the other two. Fry, J., held that the sharea had vested on the ohildren attaining twenty-one. He said he should be inolined to give the word "payable" its natural meaning, bnt there were authorities for holding that it might be construed differently, and there were indicationsin tbe will whioh led to tbe inference tbat it was not to be read literally. The words were " payable as said," and in the direotion to pay the words were, "at 1 when they shall attain twenty-one." Then the power of maintenance and advancement was confined to the minorities of th<s ohildren. Again, tbe ultimate gift over was in tbe event of all the ohildren dying under twenty-one. The inference was that the first gift over was intended to apply to a state of circumstances similar to that to whioh Che second was to apply. On tbe whole, he thought the 1 "payable aa aforesaid " must be read as meaning' ing twenty-one."—Solicitors, Battiem, Wigg, «fc Co. Tucker i Lake; Beale, Marigold, <fc Co.
Executor — Retainer — Equitablb Assets — S & 4 Will. 4, c. 104.—In a casa of Walters r. Waiters, before Fry, J., on the 16th inst., a question arose as to an executor's right of retainer. The suit was brought for the administration of the real and personal estate of a testator, who died in the year 1865, and a decree for administration was made in 1866. His personal estate was insufficient for the payment of his debts, and his real estate was sold, and the proceeds of sale brought into court. The personal estate realized £43,000. The specialty debts amounted to £51,000. The simple contract debts amounted to £66,000. In August, 1876, there were :n court a sum of £17,000, arising from personal estate, and a sum of £40,000 which had arisen from the sale of real estate, and an order was then made that the £17,(100, and so much of the £40,000 as should be necessary, should be applied paying the specially debts, and this was done. Further sums were afterwards realized, both from personal estate and from tbe sale of real estate, and were Drought into court, and when the oai.se came on for further consideration there was a sum of over £20,000 in court, which was made up of those further sums, and of the residue of the £40,000 after the payment of the specialty debts had been made, but there was not enough to pay the simple contract debts in full. The executor of the testator claimed, by virtue of his right of retainer, to be paid, in priority to the other simple contract creditors, a simple contract debt which the testator owed him. Fry, J., held that this claim could not be sustained. He said that the specialty debts had been, 'in fact, paid out of two funds—personal estate, whieh 'Wsb legal assets, and real estate, which were made assets by tbe Act 3 & 4 Will. 4, c. 104. The executor's right of retainer applied only to legal assets, and it was a right inter paret—as against creditors in the same degree— and extended no further. If the personal estate had been, applied in the first instance in payment of the specialty debts, the executor could never have succeeded in 1 his right of retainer. If he could assert it now, it by reason of the accident that the specialty debts had I
paid in part out of the proceeds of real estate. For several reasons there could be no right of retainer as to the proceeds of real estate. In the first place, the Aot made real estate assets in equity, and in equity there never was any right of retainer. Again, the right applied, ex necessitate, only to what came into the hands of the executor, and real assets did not come into his hands. Further, the right arose out of the executor's incapacity to sue for his debt by reason of his being executor, and he never could hare sued, if he had not been executor, in respect of the real assets under the Act. The mere accident of the payment of the specialty debts partly out of the real assets could not alter the rights of the parties, and the execntor was bound, more than anyone else, by the rule that legal assets ought first to be applied in the payment of debts. The order of August, 1876, proceeded upon the right of the specialty creditors to be paid out of any assets which were available, and could not have been intended to enlarge the executor's right of retainer. The specialty debts having exhausted the legal assets, and the executor having no right of retainer against the equitable assets, there was no fund again.-; which his right existed, and the claim most be disallowed.— Solicitors, Currie, Williams, <fc Williams; Geare <£• Son; Webb, Slock, d; Burl; Stibbard, Gibson, cfc Co.
CASES BEFORE THE BANKRUPTCY REGISTRARS. (Before Mr. Registrar Murrat, acting as Chief Judge.) April 9; May l.—Ex parte Tlus Trustee, Re Clarke. A company granted a lease of certain premises to H. H. assigned the lease to C, and C. mortgaged the lease by way of underlease to T., H., & Co.
C. having- presented a petition for liquidation, H. gave notice to the trustee under liquidation, pursuant to section 24 of the Bankruptcy Aot, requiring him to decide whether he would disclaim or not.
Held, upon an application being made for the purpose, that C.'s trustee was entitled to leave to disclaim the premises.
This was an application by the trustee under the liquidation of Riohard Clarke, jun., for leave to disolaim the debtor's interest in certain leasehold property, under the Bnles of 1871.
The original lease, dated the 2nd of December, 1875, was granted by the East and West India Dock Company to one Hill, for twenty-one years, at a rent of £300 a year. On the same day Hill assigned the lease to the debtor by a deed containing the nsual covenants of indemnity by the debtor.
On the following day, December 3, the debtor mortgaged the lease by way of underlease to Messrs. Truman, Hanbury, & Co. for the whole term, wanting three days. The original lessee, Hill, having given notioe to disolaim, under the 24th section of the Bankruptcy Act, the trustee made the present applioaticn.
Clarkson (solicitor), in support of the application.
Latham, for the lessors, opposed the application, on the ground that, looking at the words of the 23rd seotion, that where the property was "a lease," it should be deemed to bave been surrendered at the date of the "order of adjudication," they would be deprived of their remedies against the original lessee, Hill. We are willing to give an undertaking not to sue the trustee, or make any claim against the debtor's estate.
Wbilting (solicitor), for the mortgagees, also opposed, on the ground that, by the disclaimer, their sub-lease would be destroyed.
MeStceeney, for Hill.
Clarkson, in reply.
The following authorities were cited:—Smyth v. North 20 VV. R. 242, L. B. 7 Ex. 242; lie Wilson, 20 W. B. 363, L. B. 13 Eq. 126; Reed v. Harvey, 28 W. R. 423 j Smalley v. Bardinge, 29 W. R. 554; Ex parte Buxton, Re iluller, 29 W. B. 28, L. R. 15 Ch. D. 289 ; Ex parte Brook, L. B. 10 Ch. 10O.
A portion of the artiole, "The Effect of Disclaimer upon an Underlease," 25 Solicitors' Journal, 423, was also read to the conrt. Cur. adv. rult.
May 7.—Mr. Beoistrak Murray :—Before disposing of this case I was hoping that the recent case of SmaUnj v. Uardinrje, before the Court of Appeal, might have been
reported, so that I might have seen how their lordships had dealt with it in their judgments. But, as it cannot now be reported for another month, I will no longer delay my decision. I am of opinion that neither of the objections is sufficient to induce the court to refuse the leave asked for by the trustee. As regards the lessors I intimated, during the argument, that in view of the decision of the Court of Exchequer in the caie of Smyth v. North, I should find considerable difficulty in giving weight to the objection. I remain of the same opinion. If the point had been res integra, and unaffected by authority, it would have been my duty to have given it the fullest consideration, and to have propounded my own views in my own way upon the construction which ought reasonably to be put upon the section. But I am absolved from any such necessity, because I entirely concur in the construction given to that section in the case of Smyth v. North by thetwo learned judges, 1! irons Martin and Pigott. In expressing this concurrence I do so in all humility, having regard to the dissent and opinion in that case of Lord Justice Bramwell, and to the very strong terms in which that opinion was conch ed. But, it is to be observed, that that case was decided nine years ago, and that, while numerous cases have since arisen in this court in which the court has given leave to trnstees to disclaim under similar circumstances—some of them to my own knowledge cases in which Lord Justice Bramwoll's remarks in Smyth v. North have been strongly urged against leave to disclaim being given—the point, so far as I know, has never come before the Conrt of Appeal, and not a single authority has been producsd by Mr. Latham which in any way militates against that decision. I do not forget that the dock company offered by their counsel to give an undertaking not to sue the trustee, or make any claim against the debtor's estate, as a mode of meeting the alleged difficulty. But, unless the difficulty is one which would lead to manifest injustice, would the court be justified in refusing leave to the trustee to exercise a right given to him by the Act, and in forcing upon him an undertaking which he is not inclined to accept? He desires to have all the benefit of a disclaimer, and noue the less because notice has been served on him by his assignor. I am of opinion that the exercise of such a discretion by the court would be inconvenient and improper. The ssme observation applies to the objection of the under-lessees, who desire that the court will only give leavo to the trustee to disclaim the equity of redemption, and they rnfor me to a case of Re Wilson, in which the learned Chief Judge made such an order under what is said to have been precisely similar circumstances. That case is very short and 1 will refer to it. [The case and judgment were read.] It is quite clear that the particular form of order was in that case so framed, not at the instance of Pound, the mortgagee, who was quite willing that the trustee should disclaim generally, but at the instance of Simmons, the lessor, for whom Mr. Montagu appeared, and who probably was seized with the same kind of alarm which has operated upon the dock company in this case. What Mr. Montagu's arguments were the reporter does not tell us, but looking to the undertaking by which the order is prefaced they were most probably of a Bimilar kind. Be that as it may, I only regard this case as an authority for the proposition laid down in the head-note. [The head-note was read]. There is nothing in the observations of the Chief Judge to guide me as to the grounds of his decision. His observations are very short, and I will read them. [His Honour read them]. At that time, moreover, the case of Smyth v. North had not been heard, or the Chief Judge might have decided differently. I pass from this casa to Smalley v. Hardinge. No doubt, if the law laid down by Mr. Justice Mathew had been affirmed on appeal, it would have afforded good ground for the sub-lessees endeavouring to intercept the disclaimer, and for their urging upon the court some mode of assisting them out of the difficulty. But that decision having been overruled, and the Court of Appeal haviog, as I understand, decided that the under-lessee's right under snch.ciroumstances remains intact, notwithstanding disclaimer by the trustee, any difficulty of that sort is removed. I see no ground for refusing the application of the trustee.
In regard to the question as to how far the court would be justified in limiting or interfering with the trustee's statutory right to disclaim under the discretion purported to be given by the Bule of 1871, I would refer to the case of Reed v. Harvey, and to the observations of Lard Justice Lush in 1)is judgment as to whether that rale could operate to cODtrol the Aot, or whether, to that extent, it would not ba held to be ultrd. vires. The rale is, as hia lordship Bays, a rule as between the trusteo aud the court, and one might add also the creditors aud the bankrupt's estate.
Upon the whole, the order I propose to make is this. It is in the form which was very carefully settled some years ago, and it has not only been acted on by myself, but as I understand universally by all the registrars. The lorm of the order will be this. It will recite the lease ; it will recite the assignment to Hill; it will recite the under-lease made by the debtor to the mortgagees, and it will recite the resolution, and the appointment of trustee, and, following the words of the statute, it will recite that, whereas part of the property of the debtor acquired by the trustee consists of the hereditaments comprised in the said indenture of lease, subjeot nevertheless to the indenture of under-lease and mortgage hereinbefore recited, and whereas the trusteo has applied for leave to dieolaim suoh property: Now upon hearing, &c, it will beordeied that the trustee have leave to disclaim suoh property.
Solicitors for the trustee, Rodgers <t Clarhscn.
Solicitors for the mortgagees, Sevan <fc Whittiny.
SOLICITORS' CASES. Citt Of London Court. (Before Mr. Commissioner Kerr.) May 17.—Gilbert v. Terry. Terry, solicitor, applied for an order for a new trial in this case. Ho said it was an action brought against himself by Mr. Gilbert, surveyor, of Old Jewry-chambers, and tried before his Honour and a jury, in which the plaintiff claimed compensation for attending a trial at Westminster, and (jiving evidence as a surveyor on behalf of his (Mr. Terry's) client. The jury found a verdict for Mr. Gilbert, and gave him three guineas; but he (Mr. Terry) submitted that the verdict was against the weight of evidence, that it was perverse, and contrary to the direction of his Honour. There was nothing said by the plaintiff to make him (Mr. Terry) personally liable, and it was held that a solicitor could not be held liable for the costs of a witness unless it could be shown he went out of his way to Eecure attendance. Assuming that he was liable, he submitted the damages were excessive. A guinea was the utmost sum allowed to a surveyor gving evidence at a trial, and be contended that Mr. Gilbert would not be allowed three guineas in any court. He (Mr. Terry) had been forty years iu business, and never had an application like the present before, but he oonsidered there was an important professional principle involved, and upon these grounds he hoped his Honour would grant a new trial.
His Honour said the plaintiff swore that the defendant went to him and told him be (Mr. Terry) wanted him to give evidence on behalf of his client, and the jury believed that the defendant was nnwise enough to say a word on his own responsibility, and so found against him. If the two parties were agreed upon the evidence, he (the learned commissioner) would grant a new trial. He could not say tbat be agreed with the amount awarded, but he would not uiatnrb the verdict for that.
Application refused, w.tu costs.—City Press.
SOLICITORS' BENEVOLENT ASSOCIATION. The usual monthly meeting of the board of directors of this association was held at the Law Institution, Chancerylane, London, on Wednesday, May 11, the following directors being present:—Messrs. Kickmau (in the chair), Asker (Norwich), Brook, Hedger, Janson, Kays, Penning, on, Roscoe, Rose, Walters, and Woolbert, Mr. Eiffe (secre
tary). A sum of £193 was distributed in grants of relief among eight necessitous widows and families of solicitors; ten gentlemen were admitted members of the association, and other general business transacted.
LAW STUDENTS' JOURNAL.
INCORPORATED LAW SOCIETY. Final Examination. A list of those gentlemen who passed the Final Examination, held on the 26th and 27th of April last :—
Abbott, C T. Hordern, John
Alms, E. T. Hutchinson, Frank
Barber, Fras. Jackson, J. T.
Barrs, H. H. H, LL.B. Jennings, G. C. H.
Bell, Arthur Johnson, H. AV.
Bere, J. H. Jones, Lemuel
Birch, F. J. P. Knott, E. F.
Blackburne, S. 8. Lacy, R. H.
Blackburne, T. B. Laidler, F. B.
Bode, W. F. Lamond, A. W.
Borlase, A. C Lander, J. V. T., B.A.
Brock, G. E. Lawrence, E. J.
Brocke, Walter Lee, F. H, B.A.
Brown, H. J., B.A. Leonard, V. E.
Bulleid, G. L. Lewis, A. S.
Bunting, C. J. Lowe, E. A. E.
Burchell, W. W. Lowe, H. C
Calvert, J. C. Malkim, James
Camm, Samuel Martin, F. W.
Capes, F. S. Mason, R. W.
Challinor, E. W. S. Maughan, Hugh
Clarke, A. W. May, H. B. 0.
Coe, R, B. Mayo, P. W.
Collingwood, A. H. Meadows, D. P.
Constantine, Arthur Millar, J. M.
Cotton, W. J. Milne, Oswald
Croker, Josias Milne, Wilfrid
Crump, E. R. Morgan, G. H.
Currey, H. E. Moxon, James
Cusker, J. J. Neill, Archibald
Dallimbre, H. G. Norwood, Charles
Daniell, R. A., B.A. 0*key, George
Davies, Edward, B.A, O'Cunnor, A. J.
Dennis, A. B. O'Kelly, T. C,
Denton, C. St. John Oldtield, H. R., LL.B.
Dickinson, George Oliver, A. J.
Douglas, R. K. V. Palmer, G. A.
Douglas, Thomas Pattinson, A. T.
Down, T. L. Pawson, J. H.
Dowse, Robert Penrose, J. C.
Driver, J. H. Pickering, Atkinson, juc.
Druce, J. A. Pitman, A. G.
Duke, Frederick Porter, P. E. B.
Duncan, R. D. Prall, G. W.
Dyall, George Preston, F. S.
Edelston, P. H. Pryce, J. D.
Edmonds, W. F. 0. Quiggin, E. S.
Edmondson, R, Baby, Samuel
Edwards, C. J. Raley, W. E.
Estill, John Richards, T. M., LL.B.
Eves, C. J. Robey, P. J.
Farmer, J. H. Robinson, F. W.
Fernandes, G. W. L. Rrgers, W. S., M.A., LL.M.
Fisher, B. E. Roscoe, W. M.
Gardner, James, jun. Rose, F. P.
Geach, W. L. Salt, H. F. G.
Geary, A. R. 0. Sargeant, Albert
Goold, C. A. Sheldon, A. S.
Gould, H. W. Shum, Sydney
Gray, H. G. Shute, Gay, jun.
Hall, John Simmons, 8. M., B.A.
Hardcastle, J. N. Simpson, 0. E. T.
Hearn, T. R. Smith, A. C. K.
Henderson, G. C. Solomoo, G. E.
Hilton, S. O. Stacpoole, William
Hodgson, Arthur Swinburne, William
Hodson, J. E. Sykes, F. James
Hope, C. E. Tatham, L. J., B.A.