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Court of Appeal are of opinion that the matter is al circumstances of the particular crime. What we should criminal one within the rule that forbids an appeal in
like to see repressed with absolutely merciless severity is criminal matters.
ruffianism and contempt for the law-the temper of the bravo, the bully, and the rough. But we do not
think that crimes of violence need therefore be treated A SENTENCE of six weeks' imprisonment recently
with undiscriminating and Draconic severity. passed by the Lord Chief Justice upon a navvy found guilty of the manslaughter of his wife has given rise to a considerable amount of adverse comment. We have
“ALL PREMISES in which intoxicating liquors are sold nowhere seen any very full account of the facts of this
by retail ” must, by section 3 of the Licensing Act, case, and consequently are not in a position to express
1874, be closed at certain hours. The premises of a a decided opinion with regard to the propriety or otherwise of the sentence.
spirit merchant on which spirits are sold by retail are There is, however, often very
premises on which intoxicating liquors are sold by retail. great difficulty in duly apportioning the sentence to the
Therefore the premises of a spirit merchant must be relative guilt in the case of these crimes of violence. It
closed at the hours prescribed. So it was held by the is very easy to accuse those who administer the law of
justices of Barrow-in-Furness in Martin v. Barker, and being too lenient in respect of crimes of violence as
two judges of the High Court have recently (see Weekly compared with crimes against property. We oftentimes
Notes, 1881, p. 86), affirmed a conviction of the spirit feel strongly inclined to do so, and we think sometimes
merchant for a sale in closing bours. The case is of so rightly; but we are disposed, on reflection, to think that there are difficulties in the way of laying down the
much practical importance to competing trades that we true principles of punishment in this respect which go
suppose it was worth while, when & question once arose far to explain, if not altogether to excuse, the apparent
upon it, to get it solemnly decided, but it is a matter of lapses of judicial discretion which from time to time
some surprise to us how such a question could have
been raised at all. The spirit merchant, it appears, occur with regard to crimes of violence. A thief is, in
held a licence for the sale of spirits by wholesale, the great majority of cases, of what may be termed a
and also a retail licence for the sale of spirits by retail, criminal disposition. Thieving is generally a deliberate
under 24 & 25 Vict. c. 21, a. 2; and also used his crime of a character very mischievous to society, and there is no counterbalancing consideration arieing from
premises exclusively for the sale of intoxicating liquors. the fact that the person who commits it may be in
It is expressly enacted by section 73 of the Licensing
Act, 1872, that a licence, as defined by that Act [i.e., by general & meritorious member of the community.
section 74,“ a licence for the sale of intoxicating liquors With regard to crimes of violence, the difficulty
granted by justices in pursuance of the Intoxicating arises that the perpetrators of them are frequently persons who, as far as
Liquor Licensing Act, 1828, including a certificate of is known, are, save in respect of the particular crime, hard-working, law-abid.
justices granted under the Wine and Beerhouse Acte, ing members of the community, and so far valuable to
and including a licence for the sale of sweets, which is it. Cases of the description with which the Lord Chief
hereby authorized to be granted in the same manner as Justice had to deal sometimes assume a very melancholy
if sweets were wine, and including a licence for the aspect. A hard-working, decent, though perhaps some
retail of spirits granted to a wholesale spirit dealer by what ignorant and rough sort of fellow-a navvy, per
the justices in pursuance of this Act], "shall not be
required for .. haps, or a bargee, who has usually been kind to and lived
. the sale . .. of spirits by
retail, not to be consumed on the premises, by a wholehappily with his wife and children-takes too much drink
sale spirit dealer whose premises are exclusively used for some Saturday night-after the manner, unfortunately, of too many of his class-receives, perhaps, some consider
the sale of intoxicating liquors” in pursuance of a
licence under 24 & 25 Vict. c. 21. It was conable provocation, for it must be remembered that women of
sidered, we suppose---perhaps by a misapprehension of the same class are apt to be somewhat free, and certainly
the curious interpretation clause above cited--that, as not judicious, in the use of their tongues, and a sudden blow or a kick, given on the impulse of the moment,
the justices' licence, which is in some sense a police releaves the giver of it deprived of the companion of his
quirement, was not required, so neither could the closing life, whom, in his rough way, he may have loved in his
regulations, which are undoubtedly of a police character, sober moments, and with the weight of blood upon his
be applied to the case. So far is this from being the head for the remainder of his life. Of course the natural
scheme of the Acts, that we find it enacted by section impulse of anyone who reads the bare facts in the paper
27 of the Act of 1872 that the consumption of intoxica
ting liquor in refreshment houses not licensed for the sale is to pity the woman and say that the drunken brute of a
of wine is forbidden" during the hours during which" man ought to have got more punishment. But such hasty judgments are not always true. The man may not be a bad
the refreshment houses “ would, if they were the licensed man, nor, on the whole, a bad member of society, and he
premises of licensed victuallers, be closed by law for the may be deserving of pity rather than punishment. It
sale and consumption of intoxicating liquors," and by
section 11 of the Act of 1874 the same refreshment is almost impossible for a person who has not heard the
houses must close at the same hour as if a liquor licence case properly to judge as to the propriety of the sentence in such cases. Notwithstanding, however, what we have
were attached to them. It seems that an attempt was written, we are strongly of opinion that the person should
made to rely on the marginal note to section 3, which is
“hours of closing premises licensed for sale of intoxica. be as strenuously protected by the law as property. We think the cases one sometimes reads of at petty sessions,
ting liquors,' and so, by the combined aid of the marginal in which the most brutal violence and outrageous lawless
note and the interpretation clause, to confine the operaness are considered to be sufficiently met by fines
tion of the section to premises for which the justices' of trifling amount, are a disgrace to our magis
licence is required. But it may now be considered as
settled by the decision of the Court of Appeal in Attor. tracy. The principle which, we think, ought to be followed is that, where there is reason, from
ney-General v. Great Eastern Railway Company (L. R. the nature and circumstances of the offence itself
Ch. D. at p. 461), thar a court “cannot properly look at or the previous history of the prisoner, to suppose that
the marginal note of an Act of Parliament." an habitual tendency to lawlessness and violence exists, there the punishment ought to be unsparingly severe; but where it would appear that such is not the case, but AN ANXIOUS CORRESPONDENT inquires, Can a witness be that the crime was of a casual nature-the result of | lawfully sworn on the Revised Version ? He thinks that exceptional circumstances—then the amount of the “in these days of conscientious objections to oathspunishment may vary largely according to the nature and which may perhaps derive some additional force from
the Revisers ascribing whatsoever is more than Yea, yea, or Nay, nay, to "the evil one” (Matt, 5 xxxvii.) - STATEMENT OF THE CONSIDER. some critical witness may claim to be sworn on the Revised, instead of on the Authorized Version.” We may ATION IN BILLS OF SALE. perbaps suggest that a witness who objects to oaths would not be likely to raise the question, but it is abun
II. dantly clear that any such witness will be entitled to CONTINUING our summary of the recent decisions on be so sworn, if he considers that the oath so taken will this subject, we come to the case of Exc parte Challibe more binding on his conscience. A Jew is sworn on nor, In re Rogers (29 W. R. 205, L. R. 16 Ch. D. the Pentateuch, and we believe that some Scotchmen do | 260), in which the consideration stated way £560 not kiss the Book.
that day paid by the grantee to the grantor. In fact only £500 was paid to the grantor, $40 being retained
by the grantei, a solicitor, in payment of his costs of EFFECT OF DISCLAIMER OF preparing the deed and some other costs previously due,
and $20 being paid to an auctioneer who had valued LEASE ON SUB-LEASE.
the goods with a view to the making of the loan. The Ar length, more than ten years after the passing of Chief Judge held, upon these facts, that the considerathe Bankruptcy Act, 1869, the question of the full
tion was not truly stated, but the Court of Appeal effect of the disclaimer of a lease by a trustee in bank
reversed this decision. Lord Justice James in giving ruptcy upon the rights of the lessor against a sub-lessee
judgment said, “Whether the whole of the mortgage has been decided by the Court of Appeal in Ex parte money is actually paid by the lender into the hands of Walton, In re Levy, which will be found noted in the borrower, or whether part of it is, with his privity another column. The recent case of Smalley v. Hardinge
or by his direction, employed in payment of a debt due (29 W. R. 554) having decided that where a lease has by him, it is equally in a legal sense paid to him. . . . been disclaimed the lessor cannot eject a sub-lessee, tbe
The question is whether the transaction was a sham. point necessarily arose on what terms the sub-lessee was
That which was in the contemplation of the Legislatore entitled to hold the property.
was the very thing which occurred in Ex parte Charing If section 23 of the Bankruptcy Act, 1869, is to be
Cross Advance and Deposit Bank, where a man says that, read literally, the original lease must be taken to have
he has advanced £100 when he has in fact kept back £10 been surrendered, it has no existence for any purpose ;
for interest or discount." These observations, besides but the interest of the sub-lessee continues; the estate
containing the principle upon which the court decided of the lessor, “ to the extent and for the purpose the case, show clearly that the ground of their decision of preserving such incidents to, and obligations on,
in Ex parte Charing Cross Bank was, as above suggested, the surrendered reversion as, but for the surrender
the retaining interest in advance. With reference to the thereof, would have subsisted,” being deemed to be the deductions in the case before the court his lordship said, reversion expectant on the sub-lease. The lessor, on “It appears to me quite right to deduct the costs of prethat construction, could not distrain upon the sub
paring the bill of sale and the auctioneer's charges, for leesee for rent due upon the surrendered lease, nor
that is what happens upon every mortgage transaction." enforce upon him the covenants in that lease.
And Cotton, L.1., after pointing out that there was The Court of Appeal, by a strong piece of judicial | nothing like fraud in the circumstances of the case, prolegislation, forming a singular contrast to the literal con ceeded to say that the £20 might be fairly treated as a struction adopted in Smalley v. Hardinge, have avoided payment to the grantor, just as if it had been actually paid the injustice which would thus arise to the lessor. | to him, and then paid by him to the valuer. His lord. They have re-constructed section 23 so as to provide ship then went on to say that “the £40 was not a pay. that the lease is to be deemed to have been surrendered
ment of interest or bonus to the person who was so far only as regards rights and liabilities as between
making the advance, but was paid, as to part of it, in the lessor on the one hand, and the trustee and the respect of costs which were due to him by the grantor, bankrupt and his estate, on the other hand : so far only, I
and as to the rest, in respect of the costs of preparing that is, as is necessary to relieve the bankrupt and his
the deed, the lender of the money happening to be also estate and the trustee from liability under the lease.
the borrower's solicitor." They have not, however, given the lessor rights against The question of the sufficiency of the statement of the the sub-lessee which he had not before the disclaimer. | consideration came again before the Court of Appeal in The sub-lessee does not become upon the disclaimer ao ! The Credit Company v. Pott (29 W. R. 326, L. R. 6 Q. B. assignee of the lease, directly liable for the rent therein D. 295), where the grantor gave a bill of sale to secure reserved, and upon the covenants therein contained the sum of £7,350, which, on a statement of accounts The lease is to be deemed to have been surrendered l between him and the grantee, was found to be the only so far as to free the trustee, and the bankrupt, and balance due. The deed provided that this sum was to his estate, from liability, leaving any pre-existing rights be paid by the grantor, with interest, on demand in of the lessor as against the sub-lessee untouched. The writing. It recited that the grantee had agreed to lend result of this is that, although the sub-lessee is not the grantor £7,350, and the consideration was stated to directly liable to the lessor for the rent or covenants in ! be “ £7,350 now paid " by the grantee to the grantor. the original lease, yet, by means of the proviso for re. The court held, although no money actually passed, that entry in that lease, the lessor is able practically to obtain, the consideration was truly set forth. Lord Selborne, as a condition of the continuance of the lease, payment C., in giving judgment said, “As between the parties to by the sub-leesee of the rent reserved by, and perform | the deed, it appears to me that, as there was no fraud, ance of the covenants contained in, the original lease. the deed is conclusive evidence of the previously existIf the sub-lessee declines to pay the rent or perform the ing debt being satisfied, as much as if the money for it covenants, he will have no just cause of complaint of the had been actually handed over ; because when the comexercise by the lessor of the power which he had before pany treat the £7,350 as a new advance (and no money the disclaimer, and subject to wbich the sub-lease was was in fact advanced except by trenting the previous taken. And as the original lease still exists, the lessor debt as paid), the company could not then have said to is able to distrain, on the goods of the sub-lessee which the debtor that he owed the debt which had been are on the demised premises, for rent reserved in the previously contracted." His lordship then cited original lease.
with approval an observation of Mellish, L.J., in This is, as we understand it, the effect of the recent Spargo's case (21 W. R. 306, L. R. 8 Ch. D. 407), to decision, but we must wait for a full report before we the effect that where there are mutual debts between two can absolutely say that we are right in our view.
persons, "they need not go through the form of banding
the money backwards and forwarde." Brett, L.J., with respect to instalments under a former bill of sale in who concurred with the Lord Chancellor, observed that | Ex parte Andrews. the effect of what had taken place was to wipe out the (5) The retention of part of the consideration money old debt, which was payable at once, and constitute a for interest in advance or commission will avoid the bill new one which was payable only after a written demand. / of sale. The only distinction, indeed, between this case and Ex parte National Mercantile Banks was that there the advance was greater than the debt deducted.
In Ex parte Andrews, Re Allison (ante, p. 336), Mr. THE IRISH LAND BILL. Registrar Murray held, in accordance with the abovc principles, that the consideration of a bill of sale expressed to be “ £235 owing to, and £75 paid by, the mortgagee" SIXce we last wrote on this question, the House of Com. was truly stated, although the £235 formed part of the mons has gone into committee on the Bill, and has made consideration of a former bill of sale repayable by instal. progress to the extent of a part of the 1st clause. Small ments, some of which were not due at the date of the as this progress is, it has already afforded a conspicuous second bill of sale.
illustration of the complete state of fog in which both The last reported case on the subject is Hamilton v. sides of the House are enveloped, both as to the proviChaine (29 W. R. 488), where the consideration for a bill sions of the Bill itself, and the probable results of its of sale was stated to be £700. Of this sum £271 had working. Mr. Brand moved, from the Government side been previously paid by the grantee to the holder of a of the House, an amendment excluding “future" prior bill of rale. A cheque for the balance, £429, was, tenancies from the right of free sale given by the 1st at the time of execution, handed to the gravtor, and, at clause. This was opposed by the Government, on the her request, cashed and applied as follows:- £350 to 1 ground that, as the present tenants were to be enabled one of her creditors, £21 5s, 6d. to the attesting solicitor | to sell, it would be unjust that a purchaser from them for preparing the bill of sale, and for incidental expenses, I should not be able to sell in his turn, Mr. Gladstone and £7 10s. was paid to, or retained by, the grantee for himself saying, among other things, that the object of commission on the loan and expenses in connection the Act was that the tenant's interest should pass freely therewith, in respect of which he also received from the from band to hand "for all generations to come." The grantor her promissory note for £10. The balance of amendment was, on the other hand, supported from the the £700 was paid to the grantor. Upon these facts the Conservative benches on the ground that the purchaser court held that the consideration was not truly stated. would know that he had only bought a tenancy, not a Lindley, J., after referring to Ex parte The Charing right of sale, and that the Act of 1870, on the lines of Cross Bank and Ex parte Challinor, observed, " We bave which the Bill professed to go, contemplated the extinc. to see to which of those two cases this case belongs ; to tion of the tenants' interests by purchase by the owners. my mind it is most like Ex parte Charing Cross Bank, It was in vain that Mr. Brand and Mr. Gibson (who as the principle seems to be the same. The deduction alone, among the speakers on either side, seemed to here was not for a pre-existing debt, nor was it for understand the point) showed that, under the intercosts contracted in relation to this advance, and, that | pretation clauses of the Bill, a purchaser of a tenant's being so, it comes within the principle of Ex parte interest would be a " present " tenant himself, Charing Cross Bank.” This decision has recently been and unaffected by the amendment. Even the Attorneyaffirmed by the Court of Appeal.
General for Ireland, who, if anyone, ought to know what The real question in every case of this description the Bill means, declared that the amendment would be appears to be whether the consideration is so stated as fatal to its principle, immediately after which Mr. Glad. to make the transaction virtually a fraud, or, in the stone promised to assent to a clause which will effect, in words of Lord Justice James, a sham.” When this is | a somewhat cumbrous form, exactly what would have the case, it follows that the bill of sale is void under sec. | been peatly effected by the amendment and the interpretion 8 of the Act, but, as was remarked by Lindley, J., | tation clause taken together. in Hamilton v. Chaine, the consideration is truly stated í But this is not all: the amendment was intro“if the whole of the money for which the bill of sale is duced avowedly in the landlords' interest, and was, given is paid for the grantor's use, and for expenses as such, supported by the Conservatives, and opposed incurred by the lender in rendering his services.”
by the Government, and yet the Liberal members From the cases above noticed the following rules may for Ulster must have known (what some of the be laid down :
Conservatives may certainly know, but, as they did not (1) It is not essential that the whole or, indeed, any wish to defeat the amendment, it was not their interest part of the money mentioned as the consideration should to say it) that the amendment was really for the benefit actually pass from the grantee to the grantor; it is of the tenants; anyone the least conversant with the sufficient (provided the transaction be not a sham) if the management of land in Ulster (and the avowed object of consideration money is paid to third persons with the the Bill is to assimilate the rest of the country to Ulster privity and consent of the grantor, it being unnecessary in this respect) must have known of the practice which that a collateral arrangement as to the application of the has lately (since the Act of 1870) been adopted by such consideration should be set out in the bill of sale.
of the landlords as look merely to their pecuniary interest (2) It appears from the decision in Credit Company in dealing with their estates-a class greatly on the in. V. Pott that a consideration expressed to be "now paid”. crease since other interests have been so considerably is sufficiently set forth, although, in fact, it consists of shaken--of requiring intending tenants of farms in previous advances. The decision of the Chief Judge in Ex possession to purchase the tenant-right from them for parte Berwick must therefore, it is submitted, be con money down, just as if they had bought from an outsidered as virtually overruled.
going tenant. The practice is an inconvenient one to both (3) The retention of a sum for the costs of the pre parties, but it has been found the only effectual means of paration of the bill of sale, and for an auctioneer's getting rid of the provision in the 1st clause of the Act charges for valuing the goods comprised in it, is allow of 1870, which prevents a tenant from agreeing to waive able.
his tenant-right. If the extension of the right of free (4) The retention of part of the consideration money sale to “future” tenancies should be as we anticipate by the grantee to meet securities on which the grantor i - to extend this practice to them also, the practical is liable to him, will not invalidate the deed, although i result will be to preclude a landowner, who might the securities are not due at the time it is executed. I desire to merge the tenant's interest in his own, from This was clearly established with regard to negotiable doing so, and to compel him to require this interest to instruments in Ec parte National Mercantile Bank, and be separately purchased, in order to prevent the creation of a new tenant's interest, without consideration, which precisely what this Bill does not do, what Mr. Gladstone, he might have to buy over again.
80 late as Tuesday last, directly refused to do, being no This practice, however, might easily, and in bad bands doubt supported in this refusal by those whose object is would inevitably, grow so as to revive the old, exploded, not so much to benefit the tenantry as to injure the landand most pernicions custom of lettings at low rents in owners an object of which we entirely acquit Mr. consideration of exorbitant fines; on this ground, if on Gladstone bimself—but to the great disappointment of no other, we think that the interests, not only of the every man, be his party politics what they may, who tenantry, but of the public at large, are opposed to any desires to see, in the present Bill, some alleviation at least provisions likely to produce or foster it. The practical of the existing difficulty in Ireland. result of " free sale," however, will obviously be in the It would not, however, be sufficient to fix aud value same direction : it would, indeed, seem that whatever the tenant's interest once for all: whether this were benefit it may prove to “present” tenants to enable done as proposed by the minority on Lord Bessborough's them to sell that which, out of Ulster, few or none of commission, by fixing now “fair rents” to be paid them have given any value for, it can make very little in perpetuity, which would hand over all future acdifference--except as a matter of class-feeling--to any | cretions to the tenant-or by the introduction of one hereafter taking a farm whether he pays a full rent terminable leases in purchase of tenant-right, as atto the landlord, or a lower rent, plus a sum of money tempted upon the Duke of Leinster's estates—which equal to, often greater than, the capital necessary to pro. practically reserves these accretions to the landduce the difference, paid to his predecessor in occupa lord. Under the existing circumstances of Ireland, the tion under the right of free sale, and, therefore, it tenant's interest, if fairly fixed, ought to rise and fall might, at first sight, be supposed that the course which with, and in some proportion to, the total agricultural is obriously the best for the tenant, that by which he value of the land ; we cannot see any ground whatever keeps his capital in hand to work his farm, paying the for handing over to him any portion of any exceptional eqnivalent in rent, would, in the long run, prevail over value which the land may acquire, as building or accomthe less profitable one: experience, however, proves modation land, or otherwise, but if its value as an agrithe contrary to be the case, even under the existing cultural machine increase or diminish in the future, law; the tendency of the tenants, where tenant even though the tenant may not have, by any action right prevails, has always been to prefer to pay heavy of his own, contributed to such increase or diminution, sums for low-rented lands rather than comparatively we think that he ought to be so far recognized as a partsmall sums and heavier rents, and it is only where the ner in the farm, as to share alike the benefit and the loss. landlords- who have hitherto considered this detrimental The Bill before us recognizes this right, but refuses—or to their interests-have intervened to check them that at any rate fails—to adopt the proper means for giving the payments for tenant-right (which are obviously in effect to it. There was offered to the notice of the their nature fines for entry) have been kept within framers of the Bill a simple, self-acting arrangement moderate limits. But although it may have been the by which, if the value of the tenant's interest were interest of those owuers in fee simple who looked rather at any moment agreed or determined, it would be to the good of their estates than the benefit of their private equitably regulated for all time to come merely by the pockets, to discourage any attempt to “fine down "rents, mutual action of the parties themselves, and they have and therefore, when land“ in hand” was to be let, to deliberately preferred, as we remarked in a former eruet full rents without premiums, the contrary was article, to leave the parties with no better remedy than always the interest of limited owners, who could only, litigation, perpetually renewing at intervals of fifteen as a rule, be kept from the practice hy stringent pro years, before a court of which the spokesmen of both visions : if now the law, by limiting the extent to which parties concerned have expressed the most profound rent can be raised wbile placing no limit on the fines distrust. which may be exacted, makes it the pecuniary interest The arrangement in question has been explained more of any owner having land in hand to fine down his rents, than once in these columns, but we propose to describe and by recognizing the occupancy as having a separate it again when we come to the consideration of section 7, saleable existence, enables limited owners to evade the for which it would be the actual substitute. In the provisions against fines (because a letting from year to year meantime, it may be necessary, for avoiding of misapprewould not be touched by them), it is not difficult to foresee hensions, to reiterate, tbat we fully concur in the object the time when the possession of a farm in Ireland, even of the 1st section, so far as it means to create, in every though the rent reserved may sound most moderate, will tenant, a saleable interest, the amount of which it shall not be to be had without a preliminary payment which not be in the power of the landlord to control, but that, will leave the average tenant hopelessly in debt for the in order that this should work otherwise than disastrously rest of his life, not indeed to the landlord, who will to both parties (but especially to the tenant), its amount have taken care to get his money down, but the local ought to be capable of ascertainment at any moment, usurer, the character who has, in the past, obtained the without litigation and without actual sale, and further, largest benefits from the legislation of 1870, and for that if the tenant, from any cause whatever, and whether whose benefit especially this part of the present Bill voluntarily or by operation of law, parted with his seems to have been framed. Nor is this opinion based interest, the landlord ought to be entitled to the prewholly upon inference, however logical; the experi- | emption, at the full price, either on his own behalf or ence of “free sale" in Ulster has ever been that it tended for any other tenant then in occupation of a holding on to impoverish the tenants and prevent improvements the same estate. Careful provision, however, ought to be upon the estates, but that it nowhere inflicted any | made to prevent a landlord from compelling an unwilling pecuniary injury upon the owner : insomuch so that we tenant to part with his interest so long as he observed the have known more cases than one of well-managed "statutory conditions" of his tenure. estates in which the owners have offered to introduce free sale if the tenants desired it, and in which the majority of the tenants preferred the continuance of the restrictive rules. [Of course, the rules in question were really judicious, not arbitrary or oppressive.]
A Connecticut lawyer at Bridgeport, the other day, says
Logic, common-sense, and experience all point in the same
the Western Jurist, took exception to a judge's ruling that
some evidence was inadmissible. He said, "I know that direction : the first thing that ought to be done is to
| it is proper evidence. Here I bave been practising at the determine what the tenant's interest is, and to bar forty years, and pow I want to know if I am a fool ?" regulate its amount, and, when that is properly That ? replied the court, “is a question of fact and not of done, there will be little difficulty in making law, and so I won't pass upon it, but will let the jury proper rules for its transmission. But this is | decide."
THE ATTORNMENT CLAUSE IN A MORTGAGE. THE PRACTICE OF BANKING, EMBRACING THE CASES AT LAW
[To the Editor of the Solicitors' Journal.] AND IN EQUITY. By John HUTCHINSON. Effingham Sir, I should be glad to know whether other conver. Wilson.
ancers were as little prepared as I was for the doctrine This book belongs to a class of works which it is
| lately put forward on the highest authority, that the difficult for a lawyer to criticize fairly, because when a
mere insertion of an attornment clause in a mortgage
had made the mortgagees “ as much mortgagees in pos. bank manager has the courage to write what is in substance, if not in name, a legal treatise, it is almost in
session for all purposes of taking the account of what evitable that his work should be disfigured by defects
was due on the mortgage as if they had granted the perhaps more distressing to the mind of the professional
lease to some new lessee, and had given notice to that
lessee to pay the rent to them”; and that “one of the lawyer than important as regards the class of readers for
consequences would be this—to give a second mortgagee whom the book is intended. From the author's constant injunction to “refer to
a right to charge them with the rent they might have
received." So say Lords Justices James and Bramwell, head office," and the very elementary truths as to caution and credit which be inculcates, we presume that
in Re Stockton Iron Furnace Company (27 W. R. 433,
L. R. 10 Ch. D. 335, 356-7); and the Master of his work is intended as a guide for very young bank man.
| the Rolls adopts their view in Ex parte Punnett, 29 agers. Thus, for instance, at p. 50, be lays down the rule
| W. R. 129, L. R. 16 Ch. D. 226, 235). that “with account holders of small means, great caution
The previous understanding of the profession appears should be exercised in allowing overdrafts,” and again, at
clearly enough in the treatise on Mortgages by the late p. 88, he says that “The manager should exercise very
Mr. Waley, prefixed to the second volume of Davidson's great care and discretion in the reception of bills, and
Conveyancing (2nd ed., pp. 567-8), where the following pone but those of the most unexceptionable character should be discounted by him." On the other band, cases
occurs :are sometimes cited at a levgth quite unnecessary for lay
"Almost the only case in which an attornment is made in purposes, and more than half the book is devoted to à | modern practice is that of a mortgagor being in the actual purely legal resumé of the law of bills of exchange, for
| possession of the property mortgaged or a material part of it. wbich the inquirer would find a guide quite as practical
| In this case it is not unusual to insert a clause of attornment
| by the mortgagor to the mortgagee, so as to enable the latter and much more reliable in Byles on Bills. Indeed, the to treat the former as his tenant and to distrain for rent. .. defect of the whole work seems to us to be that it is in the absence of special provision, the mortgagee would be in neither one thing nor the other. We took up the book a worse position where the property is in band than wbere it expecting, from its title page, some valuable information is occupied by a tenant; as, in the former case, he could not as to the practical internal working and organization of enter into possession without ejecting the morigagor, wbereas, a bank. But we confess to have risen from its perusal in the latter case, he would entitle bimself to the rents by unsatisfied in this respect, wbilst, as a book of reference | merely giving notice to the tenants. It is obvious that the for lawyers, we fear that it is not, by any means. | right of distress incidental to the tenancy thus created may be exhaustive, and sometimes not altogether exact. Thus,
ezercised without incurring the liabilities of a mortgagee in to give an instance or two, the rule in Clayton's case (1
possession." Mer. 608), perbaps one of the most cardinal decisions in Mr. Waley then explains that the advantage of an banking law, though mentioned in a long judgment of attornment over a mere power of distress lies in the fact Jessel, M.R., which is set out in a foot-note, is nowhere that the attornment gives a true legal right to distrain, explained or discussed in the text. Again, though attaching on the land, and binding the goods of Rothschild v. Currie (L. R. 1 Q. B. 43) is cited, no strangers; while the mere power, when the mortgagor reference is given to the more recent and important has parted with the estate, appears to rest on contract cases of Rouquette v. Overmann (L. R. 10 Q. B. 525); only, and to be no more than a licence or covenant operaHirschfield v. Smith (14 W. R. 455, L. R. 1 C. P. tive between the actual parties. The attornment was ia 340); and Horne v. Rouquette (26 W. R. 894, L. R. 3 fact looked on as the formal way of creating a complete Q. B. D. 514) on kindred points. The term “negotiable power of distress, to be exercised or not exercised from security” is used without any adequate explanation of time to time as the mortgagee might see fit, and without the meaning of that expression in law; whilst, except by any thought of its exercise, much less its mere existence, a casual reference in a foot-note to the judgment of the condemning the mortgagee to the purgatory of “possesExcbequer Chamber, the important decision of Goodwin sion.” v. Robarts is not in any way dealt with, the judgments in It would be rather alarming to those who have a that case in the House of Lords being altogether ignored. wholesome reliance on " common forms” to have logic An example of inaccuracy will be found in the rule laid pushed so far as to be told that even a distraint under down on p. 372 as to estoppel by negligence, that an attornment clause would put the mortgagee into poscommon pitfall to lay expositors of the law.
session, a situation (be it remembered) from which he It is, no doubt, a thankless task to pick faults of this cannot extricate himself without the consent of every. kind in a book which certainly reflects no little credit body interested in the equity of redemption ; but do not upon the author's knowledge and industry. But we recent utterances go beyond logic ? Why should the certainly cannot view it as an addition of much value to mere attornment, with no further attempt on the mortthe list of our legal text-books or bandy books. At the gagee's part to assume the position of landlord, put him same time it contains a great deal of information, and is into possession more than the mortgagee of any ordinary written in an easy style, which would make it mord i reversion who has not given notice to have the rents readable for the beginner in the legal or the banking paid to him ? Does the mortgagee's concurrence in a profession than many works of the kind. The patience, lease do so too by parity of reason? If it does, the however, of the legal student will be taxed by the common clause directing payment of rent to the mort. author's practice of giving in many, if not the majority, gagor till notice, is imperatively required to protect of the cases which he cites, the dates upon which they him from the perils of “ wilful default." were decided, without any reference to the reports by Even if, npon an attornment, a rent exactly equal to which his statement of them may be verified. The sugges- the interest is reserved, it is not usual to say ". tions on p. 85 as to the improvement of the law in many words that the payment of the interest is tools bankruptcy seem to be sensible and practical.
| charge the rent, and, therefore, if interest is paid volun.