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THE FUSION OF LAW AND EQUITY AND TRIAL BY JURY.
Notwithstanding all that has been written and said about fusion, for practical purposes the dual system of common law and chancery to a very great extent continues to exist untouched. It is no doubt true that the doctrines of equity are now applicable in the Queen's Bench Division, aud so far there is no conflict in the theory of the law as administered by the courts, but to any person who looked at the administration of justice from a materialistic point of view, it would appear as if things were, in most tangible respect?, much the same as ever. It is no doubt true that the working of the courts at Westminster has been considerably altered. There is only one chief, and the whole is called the Queen's Bench Division. There is more flexibility of arrangement, and instead of three paper* for each class of business, one in each court, there is only one. But notwithstanding all this change (much of which is change of name rather than of substance) the broad features of things remain very largely unaltered. There is still a distinct line of demarcation between chancery and common law judges and chancery and common law barristers; a certain class of cases for the most part go to Lincoln's-inn and a certain class of cases to Westminster.
We doubt very much whether it is not better that it should always be so to a great extent. With regard to certain kinds of judicial work, particularly those of an administrative nature, it seems to us that the principle of division of labour is applicable, and that loss of time and uncertainty of practice are very poorly compensated for by any theoretical considerations. As far as we can see, thero cannot be any objection, even in theory, to appropriating special classes of business, such as winding-up of companies, the administration of trusts, matters relating to elections, Crown business, and so forth, to particular divisions of the one court. It may be very well for newspaper articles to imagine a system by which the same judge is to do everything indiscriminately, but it seems to us as foolish a conception as to suppose that it would really be better if every man was a Jack-of-all-trades. There is no doubt that Jacks-of.all-trades have their merits and their advantages under certain circumstances and in certain stages of development, and too great division of labour tends to narrowness, but the facility and accuracy that are derived from special experience are of very great value. The body of English law and practice are really already, aud are daily becoming in a greater degree, too large for one and the same judge to have the whole at his fingers' ends. In a court of appeal we believe that there is a considerable advantage in dealing with all subjects, as it tends to preserve a certain breadth of view and harmony between the different branches of the law, but in a court of first instance it is otherwise. To our mind the present syatea of sending Vice-Chancellors (for that is what chancery judges really are) to try murders, and common law judges to do administrative work with the details of which they are entirely unfamiliar, and in respect of "hioh they probably know less than the youngest counsel in court, is deplorably reckless.
When both divisions of the court are housed in one Mding, the time will come when the question how far, to what extent, fusion is expedient and possible will "evelop itself more rapidly, and will be more easily and ^'Urally solved " ambulando." We cannot help thinking 'one of the questions which, as this comes about, m,Ist come to the front and press for a solution, is how ar the system of trial by jury is to be retained for the !!"rsS»se of civil actions. It certainly appears to us that is a crucial question in relation to fusion, and when e» -whole administration of justice takes place in one '*■ ""ding it will be seeu to be so. Perhaps the greatest
substantial distinction of a tangible kind between the two systems which still so largely continue nnfused is, that in one division the vast majority of trials are with juries, and in the other without. There are certain cases for determining the facts of which a jury may be a very proper tribunal. Breaches of promise, malicious prosecution, libels, &c, are cases of this sort. Again, there an' certain administrative matters for which juries ar 1 entirely unfitted, and in which the same tribunal mutt necessarily determine the law and the facts. But there are cases of a substantially similar nature which, under the present system, are sometimes tried by a jury and sometimes not, for the most part merely accordiug as tlio plaintiff may have preferred to issue his writ in the Chancery or the Common Law Division, as, for instance, cases of obstruction of easements, trespass to land, ana other cases in which, in addition to damges, relief by way of injunction is required. If it is right that all the issues of fact in cases such as these should be tried by a judge without a jury, because a claim for an injunction is appended to the rest of the claim, the question must occur to every reasonable mind, why should not many other civil actions be tried before a j udge alone f
It is customary among common law judges to lay great stress on the advantages of a special jury in mercantile cases, on the assumption that mercantile men will be found among them. In the present state of the law as to juries it seems doubtful whether this advantage is now to be relied upon, and it is worthy of consideration whether by means of assessors the same advantage could not be secured. The absurdity of acting at the same time on the two incompatible views, one of which lays such stress on the popular nature of the lay tribunal, while the other holds that a trained professional intellect is the better tribunal, will, we feel sure, force itself much more on the public when the two systems are at work in the same building. If the conclusion may be arrived at that the supposed advantages in favour of the jury system are fanciful and unsubstantial, then it is obvious that there are a great many points in favour of the trial by a judge without a jury. Assuming even that, as tribunals for the purpose of arriving at the truth, their substantial advantages are equal, it is at once obvious that in point of practical convenience the judge without the jury has many advantages of detail. In the event of any defect or failure of evidence, or temporary accident, which might affect the justice of the oase, he cau adjourn the case and take it up from where it was left off at any convenient time. He can very much shorten matters by pointing out on what poiuts he wishes to hear counsel, and on what he is satisfied; he can ask questions of the witness which jurymen cannot do to the same extent: in too many ways for enumeration he constitutes a more flexible and convenient tribunal than a jury, and is, on the whole, more likely to be free from prejudice.
With regard to the question of the balance of substantial merit between the two tribunals, considered as engines for ascertaining the truth, we do not at present feel disposed to pronounce an opinion. It is, to our mind, a grave question. The old common law system of pleading and trial was based on the idea of the separability of questions of law and fact; that certain facts being asoertained as premisses by the findings of the jury, the law deduced therefrom a distinct uniform result by way of legal consequence or conclusion. The idea is incapable of being fully carried oat: law aud fact cannot be thus separated; and, so, many issues thut on the pleadings seemed to be issues of fact really involved issues of law, such as non asBumpsit, and judges necessarily constituted themselves judges of many facts. Again, it is obvious that a system of law based upon this distinction would probably have the merit of clearness and defloiteness, while it necessarily, as a correlative of such clearness and definiteness, would have the demerit of rigidity. Flexibility of legal doctrine, ulapt. bag itself to nice gradations of circumstances and of human conduct, it is obvious a system of this sort cannot have. It seems to ns one of the most puzzling things to balance these advantages. Certain judges of great power are notorious for their hostility to the equity system. It does undoubtedly seem to us that in trial by jury there is involved a very great safeguard for clearness and deflniteness of legal doctrines. A good common law judge, both by his training as a pleader and for the purpose of summing up to the jury, was constantly obliged to be throwing the law into definite formulae or propositions. This is not Bo much the case when the law and the facts can be blended together, and reliance is rather placed on precedent than principle. We believe equity practitioners have of late come to a better frame of mind, but we remember some years ago reading disquisitions on the nature of equity in which it was compared to the aroma of choice wines—a thing to be apprehended by a sort of subtle instinct, but not to be confined within the four walls of a proposition. The drawback on the one side is uncertainty aud vagueness; on the other, a rigidity which sacrifices everything for clearness and certainty, and will not adapt itself sufficiently to the more subtle exigencies of a complicated and constantly-changing civilization. 'been acquired by fraud, this interest will not be allowed to feed an estoppel, even for the purpose of protecting a purchaser for value without notice. But, granting this to hare been his meaning, it has no application to the circumstances of Keate v. Phillips. There is nothing to show that Moore had acquired the legal estate by fraud; and therefore, granting for the sake of argument (what we should not be quite prepared to grant absolutely) that an interest acquired by fraud cannot, under any circumstances, feed an estate by estoppel, this is no bar to the contention of Phillips. And if he had actually acquired the legal estate, some other words of Lord Justice James, which he styles a " rule without exception," seem to be peculiarly applicable to his position—namely, "that from a purchaser for value without notice this court takes away nothing whioh he has honestly acquired."
We cannot help thinking that trial by jury, and the essential characteristics of the common law way of looking at things, are more essentially connectod than perhaps at first sight might appear. The question how far the advantages of either system preponderate, and to what extent they may concurrently exist, or which should chiefly obtain, are questions time must solve; but we cannot help thinking that when the new law courts are open the solution of these questions will receive a considerable impetus.
ESTOPPEL AS A PROTECTION FOR A PURCHASER FOR VALUE WITHOUT NOTICE.
In deciding an intricate case of Keate v. Phillips, arising out of the Dimsdale forgeries, Vice-Chancellor Bacon seems to have taken a somewhat novel view of the application of the doctrine that innocent parties with conflicting claims have a right, as among themselves, to insist upou any legal advantage which they may respectively have the luck to possess. Three innocent parties, who had all been cheated, brought forward conflicting claims to the same parcel of land. (1) The plaintiffs, whose claim was foremost in order of time, claimed under a fraudulent mortgage of a fictitious lease for years of the land; and they claimed upon the ground that T.iit, the maker of the fraudulent mortgage, was an agent aud accomplice of Dimsdale; and that, at the time of bringing the action, the legal estate in the lands had got into the hands of one Moore upon truft for Dimsdale. They therefore contended that Dimsdale was bound, on acquiring the power Bo to do, to give effect to the pretended assurance of his agent. (2) The defendant Phillips, whose claim came second in order of timo, also claimed under a fraudulent mortgage of a fictitious lease of the land; but his claim differed from that of the plaintiffs in this, that Phillips' mortgage was au underlease purporting to be made by Moore, who, as above mentioned, afterwards did actually acquire the legal estate, thus enabling Phillips to contend that he had, by Moore's underlease, acquired an estate by estoppel, which was " fed" and turned to au estate in interest as coon as the true legal estate got into Moore's hands. (3) The claim of the defendants McStephens & Co. came last in order of time, but it had the great advantage of resting upon no fictions. They claimed under an ■equitable mortgage created by deposit of the genuine
title deeds, accompanied by a memorandum of charge made by Moore after that he hud acquired the legs! estate. Being forced to decide between these claims, the Vice-Chancellor held that the equitable mortgage e( McStephens & Co. was entitled to rank first; and, as the value of the lands was insufficient in full to satisfy this charge, it was unnecessary to pronounce any formal decision between the respective claims of the plaintiffs and Phillips.
We find no difficulty whatever in following the ViceChancellor in the strictures which he passed upon the claim of the plaintiffs, the first claimants. No doubt their contention was unanswerable, as against Dimsdale, supposing Tait to have been Dimsdale's agent; but the? were urging it, not against Dimsdale, but against somebody else who had nothing to do with him. As the ViceChancellor put it, Dimsdale's fraud might give rise to a personal claim against him, but did not touch the estate— i.e., bind the land in whosesoever hands it might be.
Butin respect of theclaim made by Mi e defendant Phillip;, we find much greater difficulty in following the judgmmt of the Vice-Chancellor. Phillips claimed that, by the strict rules of law, which ex vi termini must settle the whereabouts of the legal estate, he was actually posseascd of a legal estate for a term of years in the land, which he had purchased without fraud or notice of fraud a id for valuable consideration; and he contended that Bo one had a right to disturb his possession. Granting hit premisses, we do not know how to avoid his conclusion. For it is impossible at law to disturb the true owner of the legal estate; and it is equally impossible in equity to disturb a purchaser for value without notice. The learned counsel for the other claimants did, indeed, contend at great length that the doctrine of estates br estoppel was inapplicable to the case; and if the ViceChaucellor had rested his judgment upon this groun I, we might perhaps have found nothing to urge agaiurt it. But, without precisely deciding that IV;had got the legal estate (though his language suits that hypothesis much better than the other), he laid it down in the plainest terms thai, under such circumstances, the possession of the legal estate would be no defence to his title. "The common law doctrine of estoppel," he said, "was a defice to which'thc Common Law courts resorted at a very earl/ period to strengthen and lengthen their arm; and, not venturing to exercise an equitable j urisdictiou over the subject before them, they converted their own spetisl pleading tactics into an instrument by which they could obtain an end which the Court of Chancery at all times put into force in order ta do justice. But the doctrine of estoppel is purely legal. There is no case in which a trustee, having made a fraudulent representation by which he was bound, or even a fraudulent conveyance, when he got his legal estate confirmed (be still remaining a trustee) was so estopped as to deprive the persons beneficially entitled to the estate which was theirs and of which he was the trustee and the trustee only. The doctrine of estoppel has, therefore, in my opinion, no place whatever iu the case before me."
But, iu the first place, we humbly submit that, even granting all this, Phillips was not attempting to do anything of the kind supposed; tie parallel drawn by the Vice-Chaucellor would require that the innocent cestui que trutt, Dimsdale, should be in peril of losing his land by the fraud of his wicked trustee Moore—a picture which docs not a suit the circumstances of the case. And, in the »e. place, as to the general doctrine that an estate originally acquired by estoppel and afterwards fed by accruer will not, in a court of equity, protect a purchaser for value without notice, we humbly submit that it i» hard to reconcile this doctrine with the judgment of the Lord Chancellor and Lords Justices in Heath v. Creawe* (23 W. R. 95, L. R. 10 Ch. 22). It is true that some expressions used by the Lord Justice James tible of the interpretation that, when an
THE NEWSPAPER BILL.
The Bill which it is proposed to style the Newspaper Libel and Registration Act, 1881, is a measure of considerable importance to the press and the public, and from the fairness with which it is drawn, and the unanimity of opinion as to the present unsatisfactory state of the law, it will, in all probability, pass. Shortly put, the Bill relieves the press in respect of reports of public meetings and criminal prosecutions, and relieves the public iu respect of "proof of publication." Reports of public meetings are made "privileged," aud the fiat of the Attorney-General is interposed between a prosecutor and his prosecution. On the other hand, there is to be so complete a system of registration, that anyone will be able to discover in a few hours, if not minutes, who the proprietor of any particular newspaper is.
The definition of "newspaper," which has hitherto had no statutory definition, is
"Any paper containing public news, intelligence, or occurrences, or any remarks or observations therein (sic), printed for sale and published in England or Ireland periodically, or in parts or numbers at intervals not exceeding twenty-six days between the publication of any two such papers, parts, or number?.
"Also any paper printed in order to be dispersed and made pnblic weekly or oltener, or at intervals not exceeding twenty-six days, containing only or principally advertisements."
We do not wish to be hypercritical, but we must say that this definition strikes us as very fussy, and quite unnecessary, except as regards the intervals of publication. Why not be fatisfied with the "any publio newspaper or other periodical publication" of Lord Campbell's Act (6 & 7 Vict. c. 86), s. 2, upon the meaning of which there has never been any doubt raised f
The clause protecting reports of public meetings is this:—
"Any report published in any newspaper of the proceed, ■ngs of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose, and open to the public, and if such report was fair and accurate, and published without malice, and if the publication of the matter complained of was for the public benefit; provided always, that tbe protection intended to be afforded by this section shall not be available as a defence in any proceedings, if the plaintiff or prosecutor can show that the defendant has refused to insert in the newspaper in which the report . . . appeared a reasonable letter or statement or explanation or •contradiction by, or on behalf of, such plaintiff or prosecutor."
The present law seems to be that oomments upon the Conduct of persons at a parliamentary election meeting !tre privileged (Davis v. Duncan, L. R. 9 C. P. 396); but that a true report of a public meeting " held under a local Act for the improvement of a town" is not (Davison I ^. Duncan, 7 E. & B. 229). This combination of rules
(if rules they may be called) is very unreasonable, and we are glad to see that it is proposed to apply a reasonable remedy. But could not the enactment be made more comprehensive by consolidating with it the enactments of Lord Campbell's Act as to the plea of apology, and by oodifying, as far as newspapers are concerned, the few undoubted rules of privilege which exist? If the Bill passes, we shall still have to consult Davis v. Duncan for the privilege of comments on a public meeting, and Wason v. Walter (L. R. 4 Q. B. 73), and Camp, bell v. Spottiswoode (32 L. J. Q. B. 185), for other branches of privilege. At any rate, effect might be given to Davis v. Duncan by adding after the words " any report" the words "with or without comment." Again, what is the use of requiring that the meeting should be " lawfully convened," so long as the purpose must be lawful? An accidental defect of notices, &c, ought not to deprive a newspaper proprietor of the benefit of the section.
To the clause (3) that no prosecution of a newspaper "proprietor, publisher, or editor," shall be instituted without the fiat of the Attorney-General, there can be no reasonable objection, and the sooner it passes the better. We have had enough, and more than enough, of criminal prosecutions, and rules for criminal informations, in matters of this kind.
Passing, lastly, to the clauses for registration, we observe that in substance, but with much greater neatness and precision, they propose to bring back a state of the law which existed for the first sixty or seventy years of the present century, and the repeal of which, by the Newspapers, Printers, and Reading Rooms Repeal Act, 1869 (32 & 33 Vict. c. 24), has long been universally re. gretted by the advisers of plaintiffs in actions for newspaper libel (see Roscoe on Evidence, 11th ed., p. 511; 13th ed., p. 867). It seems that the Act 6 & 7 Will. 4, c. 76, repealing but re-enacting 38 Geo. 3, c. 78, obliged declarations specifying names of publishers, &c, to be delivered to the Stamp Commissioners, and provided that a certified copy should be evidence of the contents of such declaration upon the production of any newspaper corresponding with the description in the declaration. See Mayne v. Fletcher (9 B. & C. 382), in which it was vainly contended that it was necessary to produce the particular newspaper lodged with the Stamp Commissioners. The repeal of 6 & 7 Will. 4, 0. 76, by the repealing Act of 1869—which preserved section 19 only, compelling ''discovery"—no doubt has thrown great difficulty in the way of " proof of publication," and occasioned not a few unexpected nonsuits in actions for libel.
The clauses by which registration is enforced are well and simply drawn, but we think that the penalties of ten and twenty pounds for non-registration and false regis tration are far too low, and might well be altered to £100 and £500 respectively, with an additional penalty of £50 a month for every month's omission to register. The particulars which are to be placed upon the register are (1) the title of the newspaper, and (2) the names of all the proprietors of such newspaper, together with their respective occupations, places of business (if any), and places of residenoe. The necessity of publishing these particulars to the world will no doubt weigh rather heavily upon those gentlemen who like to carry 011 a newspaper business anonymously, but we see no reason why they should be allowed to escape from their just responsibilities.
We observe, with some little surprise, that it does not appear to be made compulsory co enter transmissions or transfers upon the register. New proprietors, it is proposed, "may" [not must], by clause 7, make entries of their succession iu interest.
By clause 11 every extract from the register duly certified is conclusive evidence of the contents of the register, and " sufficient primd facie evidence of all the matters and things [why " things" ?] thereby appearing, unless and until the contrary thereof be proved."
CASES OF THE WEEK.
Harried Woman—Reversionary Interest In PerSonalty—Settlement Of Personal Estate—UnauthoRized Investment In Land—20 & 21 Vict. C. 67.—In a case of Durrani to Storur, before the Court of Appeal on the 20th inst., a question arose as to the power of a married woman to convey land which represented a reversionary interest in personal estate to which she was entitled under a settlement made before the Act 20 & 21 Vict, c 57 (known as Malins' Act), which authorized married women to alienate reversionary interests in personalty, the trustees of the settlement having made an authorized investment of part of the trust funds in land. In 1842, a marriage settlement was made of personalty of the wife, on trust for the wife and the husband and the children of the marriage. The settlement contained no power to invest the trust funds in the purchase of land. In 1853, tbe trustees, at the request of the husband and wife, laid out part of the trust funds in the purchase of land. In 1875 a deed was executed, to which the surviving trustee, the husband and wife, and their two daughters (who were the only children of tbe marriage) and their husbands were parties, by which the trustee (at the request of the other parties) conveyed the land to such uses as the husband and wife should jointly by deed appoint, and in default of appointment as the survivor should by deed or will appoint, and in default of appointment, after the death of the survivor oi the husband and wife, to the use of the two daughters respectively in fee in moieties, for tbeir separate use. This deed was acknowledged by the daughters. The wife died without having had any other children, and the husband then contracted to sell the property. The purchaser objected that he could not make a title, on the ground that the land represented personal estate, and that tbe daughters h>d no power to deal with their reversionary interests in personalty under the original settlement. Hall, V.C., held that a good title could not be made. The Court of Appeal (jessel, M.R., and BaggalLat and Lush, L.JJ.) held that, whatever right the daughters might have against the trustees in respect of tbe breach of trust, still they had an interest in the land in which the trust lund bad actually been invested, and that under the Fines and Recoveries Act they could make an effectual conveyance of that interest as they had affected to do by the deed of 1875. Consequently, the father could make a good title to tbe purchaser under tbe power of appointment created by that deed. At any rate, if the daughters joined in the conveyance to the purchaser (as they were willing to do), every difficulty would be removed.—Solicitors, Sole, Turner, 4- Knight; Scarlett.
Apfeal For Costs—Trustee Deprived Of Costs.—In a case of Farrow v. Atutin, before the Court of Appeal on the 21st inst., the preliminary objection was raised that the appeal was for costs only, and could not, therefore, be entertained. The action was brought by the tenant for life of the residue of the testator's estate, who was also the executrix, for the administration of the testator's estate ; an administration decree was made; and, on further consideration, Malins, V.C., on the ground that the action was unnecessary, diclined to allow the plaintiff any costs, and ordered her to pay the costs of one of the inquiries whioh bad been directed. The Court (jessel, M.R., and Baggallat and Lush, L.JJ.) overruled the objection, and reversed tbe decision of the Vice-Chancellor, giving the plaintiff her costs out of the estate.—Solicitors, F. Jones; Sadgrove.
Will—Construction—Survivor.—Injthe case of Davidson v. Kimpton, before Frj, J.,on the 17th inst., a question arofe as to the meaning of tbe word "survivor" in a will. A testator gave tbe dividends of a sum of £10.000 consols to bis wife for her life, and after her death be gave tbe dividends of tbe consols unto and eqnallyabetween bis four daughters, and from and immediately after tbeir respective deaths he gave the consols to their ohildrec, in the proportion of one-fourth part thereof unto and equally between the children of each daughter, and in case any one or more of tbe daughters should die without any issne her or them surviving, he gave the part or parts of the
consols so bequeathed to and intended for the issue (bad' there been snob) of her or them so dying without issue, on to the survivors or survivor of the four daughters, equally if more than one, and if but one, to suoh one. The wiF» died before the testator; the four daughters 8 nrvived him. Three of them married, and died leaving children. Tbe fourth daughter did not marry, and having attained the ape of fifty- fou r she petitioned for a transfer to her of the one-fourth of the consols to the dividends of wbioh she was entitled for her life, on the ground that, if she died without issue, she would be entitled to that one-fourth absolutely at the snrvivor of the four daughters, and that she might now be treated as past the age of child-bearing, and, consequently, it might be assumed that she would die without issue. Fry, J., held that she was entitled to the transfer. He was of opinion, following tbe decision of Jessel, H.B., in the somewhat similar case of Made* v. Taylor (45 L. J. Ch. 569), that the words "survivors or survivor" meant those of the class of daughters who were at the time when the death without issue took place the survivors of tbe olass. Tbe fourth danghter answered this description, and as, by reason of her age, she might be taken to be past ohild-bearing, she was entitled to the fund absolutely. If this construction was not sound, the original gift to the daughters, being a gift of the incomes without any limitation, was equivalent to a gift of the capital, and there was a gift over in the event of the death of a daughter leaving ohildrec, and also in the event of her death without leaving obildren, and leaving sisters or a sister surviving her; but there was no gift over io tbe event of her dying without issue, and leaving no sister surviving her. Consequently, the original gift remake: in operation.—Solicitors, Letts Brothers.
Will—Construction — Gift Over Of Leqaot On Death Of Legatee Before It Should Have Been Paid To Him—Validity.—In a case of Chatton v. Seago, before Fry, J., on the 18th inst., the question arose whether a gift over of a legacy, in case of the death of the legatee before the legacy or any part thereof should have been paid to him, wu void for uncertainty. It was contended that it was, upoD the authority of Butchm v. Mannington (1 Ves. jun. )366) and Martin v. Martin (14 W. R. 986, L. R. 2 Eq. 40»). Fry, J., was of opinion, upon tbe language of the particular will, that tbe testator was referring, not to tbe time of actual payment of the legacy, but to the time when payment ought to be made according to the directions of the will. Thai being so, the case of In re Arrowsmith's Trusts (9 W. R. 258, 2 De G. F. & J. 474) was almost exactly in point, and was an authority for holding that the gift over was valid. His lordship was of opinion that that was a sound decisioo, notwithstanding what was said of it bv Malins, V.C., in Bnti r. Padwiek (28 W. R. 382, L R. 13 Ch. D. 517). The words in Hutehin v. Mannington and Martin v. Martin were essentially different. In the latter case it was the time oi actual receipt which was referred to. — Solicitors, Clark* Woodcock, ie Byland i Whites, Rtnard, «fc Co.; Waiter A Batlittombe.
Statutb Of Limitations — Mortgaoe — Foreclosure Action—3 & 4 Will. 4, c. 27, as. 2, 24, 40—7 Will. 4, A*» 1 Vict. C. 2S—S7 & 38 Vict. C. 57, s. 1.—In a case of Barlock v. Ashberry, before Fry, J., on the 20th inst, the question arose whether a simple foreclosure action is an action to recover land, or an action to recover tbe mooej secured by the mortgage, and whether, therefore, it » governed by sections 2 and 24, or by section 40 of the Statute of Limitations (3 4 4 Will. 4, o. 27). Fri, J., held that such an action ia an action to recover land, and is, therefore, not within section 40. Its object, he said, is to put an end to tbe mortgagor's right in equity to recover tbe land, though the mortgagee's estate bad become absolute at law. This v/as tbe view of Lord St. Leonards in Wrixon v. Yae (3 Dr. A W. 104), and it seemed to have been tbe view of tbe Court of Appeal in the recent case of Beaih v. Pugh (I,. R. >i •:■ !>• D. 34.1). Another point arose upon the construction ot the Act 7 Will. 4, and 1 Vict, c 28, which provides that "it ahull be lawful for any person entitled to, or claiming under, any mortgage of land to make an entry, or bring an action at law, or suit in equity, to recover such land at any time within twenty years next after the last payment of any part of tbe principal money or interest secured by such mortgage. although more than twenty years may have elapsed since the time at which tbe right to make •ueh entry, or bring such action or suit in equity, shall have drat aoorned." The period of twenty years is now by the Act 37 & 88 Vict, c 57, t. 1, reduced to twelve years. The question was, by whom must the "payment" there referred to have been made, the words not being limited, as they are in section 40, which relates to actions to recover mortgage money, to payment "by the person by whom the same shall be payable, or bis agent.'' Tbe question arose nnder these cirouinstances. A legal mortgage of land was made in 1849. The last payment of interest was made in 1859, and no payment of principal Was made. In 1878 one of the tenants of tbs estate, in consequence of a notice given to him by the mortgagee that be claimed the estate, paid the mortgagee a half-year's rent. This payment was made without tbe knowledge of the mortgagor. The tenant paid his next half-year's rent to the mortgagor, and afterwards gave op possession of the premises whioh he occupied to him. The question was whether the payment of the £5 was a payment which, nnder the Aot 7 Will. 4, and 1 Vict, c 28, would keep alive the mortgagee's right to bring a foreclosure action. The payment was made before the Act 37 & 38 Vict, c 57, came into operation, which was not till the 1st of January, 1879. Fry, J., held that tbe payment had kept alive tbe right, though it was not made by the mortgagor or bis agent. He was of opinion that the payment might be made by tbe mortgagor or his agent, or by any person who, as between the moitgagor and the mortgagee, was liable to make a payment to the mortgagee in respect of tbe mortgage. A payment by a mere stranger would not do; but the effeot of a mortgage of land waa that a tenaot of the mortgaged property became liable to pay his rent to the mortgagee, who might at any time require him to do so. The tenant was, therefore, a person who, as between the mortgagor and mortgagee, was liable to make a payment to the latter in satisfaction of the mortgage debt, and the payment by him would keep alive the mortgagee's right to foreclose.—Solicitors, T. 2. BaHlelt; Gregory, Rowcliffe, di Co.
Evidence — Admissibility — Unstamped Document — Time For Taking Objection.—In a oase of Thomas v. HounseU, before Fry, J., on the 21st inst., a document wbiob created a charge on some property was tendered in -evidence, and was received without any objection. The next day, on the continued hearing of tbe oase, Fey, J., noticed that the document was not stamped, aod expressed n doubt whether it could be reoeived in evidence. Counsel urged that, as the objection had not been taken by the -officer of the court, or by aoyone, when the document was tendered, it was too late to take it after the dooument had been admitted in evidenoe. Fry, J., acceded to this view. —Solicitors, B. Davies; T. S. Strangways.
Easement—Rioht Of Way—Owner Of Two AdjoinIsg Closes—Grant Op One With Ordinary General Words As To Ways.—In a case of Barkshire v. Grubb, before Fry, J., on the 22nd inst., the question arose whether, when the owner of two adjoining closes of land grants one of them, " together with all ways thereto appertaining and now used therewith," and there exists at the date of the grant a defined road over the close whioh is retained by the grantor, which road is then used for access to the close which is granted, the road having been constructed by the grantor during his unity of possession of the two closes, a right of way over tbe defined road will pass to the grantee under the general words. It was contended, on the authority of Thomson v. Waterlow (16 W. R. 686, L. R. 6 Eq. 36), and Langley v. Eammond (16 W. R. 937, L. R. 3 Ex. 161), that 110 right of way would pass to the grantee, unless tbere had been a right of way before tbe unity of possession. Fry, J., however, held that it made no difference whether a right of way had existed before tbe unity of possession, or whether the way had been constructed, during the nnity of possession ; in either oase, a right of way over a defined road, actually used at the date of the grant, would pass to the grantee under the general words. This, Fry, J., said, was the effect of tbe older authorities. No doubt the two cases which had been cited gave some colour to the distinction which had been suggested, but, in his lordship's opinion, this doubt had been
dispelled by the more recent cases of Walts v. Kelson (19 W. R. 338, L. R. 6 Ch. 166), and Kay v. Oxley L. R. 10 Q. B. 360), which had laid down the law in accordance with the old authorities, and showed that, in any case, a defined way actually used at the time would pass under a grant of all ways now used.—Solicitors, Embank <fc Partington; Venn $ Woodcock.
CASES BEFORE THE BANKRUPTCY REGISTRARS. (Before Mr. Registrar Pepys, acting as Chief Judge). May 24.—Effarle Lindsay, Be Thornton.
Leave given to trustee of bankrupt partner to inspect partnership books, notwithstanding the fact of an action having been brought against one of the continuing partners in which the solicitors for the plaintiffs were also the solioitors for the trustee, but the inspection waa limited to the transactions in which the bankrupt had been a partner.
This was an application on behalf of tbe trustee under the bankruptcy of Wm. W. Thornton for an order for the production and inspection, for the purpose of investigating the bankrupt's affairs, of all books belonging to the bankrupt, either solely or jointly with H. G. Williams and H. Bennett, or containing any entries relating to the business transactions of the firm of Henry Bennett & Co., or of the bankrupt as a partner of such firm, or individually, both prior to the dissolution of the firm and subsequently.
Previously to the lBt of January, 1880, the bankrupt carried on business at 26, Lime-street, as a tea merchant, in partnership with Messrs. Bennett & Williams, under the style of Henry Bennett &, Co.
Notice of the dissolution of the partnership was advertised in the- London Gazette of the 2nd of January, 1880, and such notice stated that the firm had been dissolved by mutual consent on the 3Iat of December, 1879, and that all debts due to or owing by the firm would be received and paid respectively by Williams & Thornton.
The trustee stated his belief that, for several months subsequently to the dissolution, the bankrupt attended regularly at tbe offices of the firm ; tbat a banking account continued to be kept with Messrs. Barclay & Co, in the name of the firm ; and that the bankrupt continued to transact business at the said offices in his own name, or in that of the firm, jointly with H. G. Williams. He had been unable to obtain inspection of any of the books of tbe firm, or to get from the bankrupt any aocount or statement of his affairs in connection with it, or of his dealings subsequently to the dissolution, or of the state of accounts between him and H. G. Williams, in reference to transactions subsequently to the 1st of January, 1880, or any account of the property of the firm come to the hands of the bankrupt nnd Williams. An application had been made to the solicitor of Williams for an inspection, and refused.
Mr. Williams in his affidavit stated that after the 1st of January, 1880, to the best of bis knowledge and belief, the bankrupt never made use of, or transacted business in, the name of Henry Bennett & Co., and no business was ever transacted by the deponent, either alone or jointly with him, in that or any other name. All that was done was to receive debts due to the original firm of H. Bennett 4c Co., contracted prior to the 1st of January, 1880, and sell and dispose of the stock belonging to the partnership, and out of the proceeds thereof, and the other moneys of the estate, pay the liabilities of the firm contracted during the period of its existence. The banking account opened in the name of Henry Bennett & Co., with Messrs. Barclay & Co., in 1878, for the purposes of that firm, was kept on foot solely for the liquidation of the business. All the trade liabilities of Henry Bennett & Co. had been paid, and all the assets realized and applied for that purpose. Mr. Williams alleged also that the trustee was endeavouring to obtain inspection in order to assist the plaintiffs in an action brought against him to recover £2,000, the amount of two bills ot exchange recently accepted by tbe bankrupt in the name of the firm of Henry Bennett & Co., and the same solicitors were employed. Mr. Williams stated the bills were accepted by the bankrupt without his authority, and could only bind tbe bankrupt individually.
Foots, in support of the application.—The trustee is entitled to inspent the partnership books: Robson on Bankruptcy, p. 623, and the cases there oited. He is not bound to accept the mere statement of Williams as to tha