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PERSONS.

We cannot say that we hold with the notion that makes the tortiousness of an act done to another in respect of ARREST OF SUSPECTED his property depend upon knowledge of the right of the true owner, or the intention to contravene that right. A man who voluntarily does an act to property not his The excitement which has been caused by the Brighton own must take the risk. He chooses to rely on the title

Railway Murder, and the many mistaken arrests which of the person giving him tbe mandate. Unless the

have been made in consequence, lead naturally to the excarrier's case put by Bramwell, L.J., is to be regarded as amination of the extent of the power to arrest suspected depending on the carrier's being compelled to carry the

persons. It will be found that this power differs very goods, and so his act being not voluntary, we cannot think

much according as the arrest is (1) by a constable with the law ought to be as the Lord Justice says it is. There

warrant; (2) by a constable without warrant; (3) by a is no such very great practical hardship. If the bail

private person, ment is in the course of a business carried on for profit, Of arrest by a constable with warrant little need be -as is generally the case, it is an ordinary incident of the

said. Since the consolidation of the numerous prebusiness, for which the bailee must be taken to recoup

existing statutes on the subject by Jervis' Act (11 & 12 himself from his profits, if not by suing his bailor. On

Vict. c. 42), the practice has become pretty well known the other hand, it is a general incident of property, and and settled, and there has been little, if any, doubt as to necessary to its effectual protection, that no one should the law. It is well to point out, however, that whereas be entitled to deal with property except the true owner, the warrant of a justice of the peace in one county must or those authorized by him, without being responsible be backed by another justice in another county, before for damage thereby occasioned. Assume that an act

it can be executed in such latter county, “a warrant from would be tortious if done by someone other than the the chief or other justice of the Queen's Bench extends true owner, without a mandate at all; how can it

all over the kingdom," and is tested England, so that it make any difference that some one gives a mandate who can be executed anywhere (see 4 Steph. Com., p. 347). has no title do so?

As to arrest by a constable without warrant, it seems The law at present seems to us to be in great con

that at common law this may be done upon a reasonable fusion on this subject, and very uncertain, and it seems

belief that the party has committed a felony. (See Griffin to us that the existing decisions are vitiated by the fact v. Coleman, 4 H. & N. 265, in which case it was held that that they proceed on the assumption, derived from the this power to arrest does not extend to cases of misdeold system, that the tortious act must amount to a con meanor. It is also laid down that in acting upon a persion. But why should this be so ? The true ques.

charge made by a third person the constable must tion seems to us to be whether there has been a dealing exercise ordinary care and caution, and that, if having with property unauthorized by the true owner which has done so, he apprehend a supposed felon upon a caused damage to the true owner. The question was reasonable charge with reference to the circumfurther complicated under the old system by the fact stances, he is justified, although it ultimately turn out that, as a necessary concomitant of the nature of con that no felony was committed (Burn's Justice, vol. version, the damages were the whole value of the goods. 1, p. 295, citing Hogg V. Ward, 3 H. & N. Some modern cases, such as Johnson v. Steer (15 C. B. 417, and other cases). So much for the common N. S. 320), had, however to some extent broken in on law, but it is material to observe that the power of a that doctrine. The damage caused by the tortious act

constable to arrest without warrant is very preneed not necessarily be the value of the goods, but the cisely dealt with by statute. By 24 & 25 Vict. cc. 97, 100, damage actually caused, when once the absolute necessity 88. 61, 66, “any constable or peace officer may take for a conversion is gone. If by the dealing of the inno. into custody without warrant any person whom he shall cent bailee with the goods the owner is not really damni- find lying or loitering in any highway, yard, or other fied, as may be the case when the act of the bailee is place during the night, and whom he shall have good merely the performance of the mandate of a bailor, cause to suspect of having committed a felony" against then no action ought to lie, because there is no damage. either of those Acts. The felonies against those Acts This would in most cases dispose of the case of the ware include murder, larceny, and most of the felonies known houseman merely keeping goods and restoring them to to the law, but it is rather singular that neither by the person who has deposited them, and other such cases, these or any other Acts (or, for the matter of that, (See judgment of Blackburn, J., in Hollins v. Fowler, at

at common law) has a constable any greater power page 767). On the other hand, we cannot see why, if the of arrest where the crime suspected to bave been act of the bailee has occasioned the damage to the true committed is murder than where it is a larceny of the owner, he should not bear the loss. For instance, if the

most petty character. Within the metropolitan police bailee removes the goods to a distant place, and the district, however, the power is more extensive. By plaintiff's title is then discovered by him, and he does not 2 & 3 Vict. c. 47, s. 64, amending, but not repealing, deliver them there to the bailor or his order, but refuses 10 Geo. 4, c. 44, s. 7, any policeman may “take into to bring them back, then the measure of damage would custody without warrant all loose, idle, and disorderly be the damage sustained by the true owner, by reason persons whom he shall find disturbing the public peace, of his goods being at the distant place instead of where

or whom he shall have good cause to suspect of having they were taken from. Under the old system it ap

committed any felony, misdemeanor, or breach of the parently would be conversion or nothing in such a case. peace, and all persons whom he shall find between sunset

We think if the matter is really analyzed to the and the hour of eight in the morning lying or loitering bottom, the case of the innocent bailee is analogous to in any highway, yard, or other place, and not giving a that of a person who has innocently bought chattels to

satisfactory account of themselves." It is clear, how. which the vendor had no title. Unless possession of ever, that the words, " loose, idle, or disorderly persons," personal property is to be held as against the true owner are governing words in the first part of this section, and to be conclusive evidence of title in favour of innocent it has been so held upon similar words in the City parties dealing with it on the strength of such possession, Police Act (2 & 3 Vict. c. xciv.), s. 8: Bowditch v. we cannot understand on what principle the innocent Balchin (5 Ex. 378.) bailee is to be protected.

Upon these statutes, as compared with the common law, Whatever the true rule may be, it is much to be wished the question arises whether they repeal that part of the that, forms of action being abolished, the law on the common law which they do not re-enact, thus limiting the subject could be put on a more certain footing without power of arrest to the four corners of the statutes, or regard to antiquated nomenclature and the former whether they leave all the common law standing. We decisions of judges hampered by the then existing forms can find no authority upon this question, unless, indeed, of action.

the interpretation put upon thein by the executive can

not propose to go into the details of these cases or the put by Bramwell, L.J., in Glyn & Co. v. East & West other more or less conflicting authorities on the question India Dock Company, of goods of one person stolen or what constitutes a conversion. We are rather disposed taken by mistake by another person, and by him delivered to suggest that the whole controversy is obsolete, and to a carrier to be carried to a distance, and then delivered that the substantial questions that were involved in the to a third person, and so carried and delivered accord." old discussion ought now to be fought out on other lines. ingly. The learned Lord Justice says that the carrier

It is common knowledge acquired by every student of clearly would not be guilty of a conversion, but we do not law in reference to the origin of the action on the case think the case of a carrier is a good one to select, because that the old common law provided certain definite forms the carrier may be entitled to a special protection, being of action. The actions provided with regard to obliged to carry goods offered to him for carriage. We tortious interference with the right of property in would rather take the case of an innocent bailee, not en. chattels were trespass, trover, and detinue. The idea titled to any special protection, who does some act to of the action of trover was of goods not actually goods of a nature such as their carriage to a distant place, seized while in the owner's possession, but found or but not meaning to assert any title or right of dominion bailed and afterwards tortiously converted by the finder antagonistic to the true owner's title. The question or bailee to his own use; and by the very hypothesis arises, Has there been a “conversion to his own use"? on which the action was based, the measure of It will at once be apparent what the second or substantial damages was the value of the goods. This being the question is from the instance we have given-viz., how form of action, the next question is, what are the facts far a dealing with a person's chattel in ignorance of his that can be fitted into it-in other words, title by the direction of another, and in the bona fide belief what facts are evidence of a conversion ? With of such other's title is, in the absence of negligence, regard to that question the course of things is, as might | tortious as against the true owner if damage thereby be expected, this. Legal experience constantly shows accrues to him. that the mould or form of action is by no means suited The two questions are dreadfully confused together to all the requirements of real life, and to meet all the ex necessitate rei under the old law, but they really do cases of injuries to the right of property in chattele. not seem to bave any necessary connection with one It is consequently every now and then more or less another. The decisions with regard to conversion bave stretched by judges desirous of doing justice. The re- heretofore exhibited two different points of view. One sult is that attempts are made to stretch it still is that, as a general rule, every exercise of dominion further, but then the divergence from the natural mean over a chattel without the authority of the true owner, ing of words becomes too glaring, and other judges re. whereby the true owner's enjoyment of the chattel is sist the tendency towards expansion. A struggle is lost or substantially derogated from, is a conversion, apparent in the course of the decisions, and the although, in one sense, there may be no conversion to meaning of the word “conversion" fluctuates the use of the defendant, and no intention on his part and becomes uncertain, the opinions of the in derogation of the plaintiff's title, of which he may the judges tending sometimes one way sometimes the be necessarily ignorant. Every act done to a chattel, other. The opinions of Blackburn, J., and Brett, J., in except some trifling acts which do not substantially alter Hollins v. Fowler in the House of Lords, and the judg- the condition of the thing, is pro tanto an exercise of ment of Bramwell, B., in that case in the court below, dominion over it, and if it causes or conduces to the loss and his judgment in Glyn & Co. v. East and West India of the chattel by the plaintiff, or deprives the plaintiff of Dock Company, are most instructive reading, as show- | the full enjoyment of it, may be said to be a conversion. ing the nature and scope of this controversy. It is This is one point of view. The other seeks rather to difficult to summarize the views thereia expressed with narrow the meaning of the terms “conversion to the regard to the points at issue, but it seems to us that there defendant's use" in the icterests of the innocent bailee. are involved two questions, one of which is a question of Its holders seem to say, if we rightly understand it, thas form, the other one of substance, and the two became conversion implies some act in derogation of the plainmixed up together in the discussions about what con- tiff's title in assertion of a title inconsistent therewith; stituted a conversion in such wise, that the formal and that a bailee who, without any kuowledge whatever uf technical question much obscured and confused the sub. the true owner's title, merely fulfils the mandate of the stantial one.

party who has bailed the chattel to him cannot be We will endeavour to state what, in our opinion, the supposed to assert any title inconsistent with the plaintwo questions are. To begin with the question of form. | tiff's, or to convert the goods to his own use. The action of trover was an action in which the alleged | Let us illustrate the extreme difficulty that arises grievance was that the defendant had converted the between these conflicting views by instances. A person plaintiff's goods to his own use. The question thereupon who has stolen goods bails them to another (we will not arises, what acts amount to a conversion of goods to a say a common carrier) to be carried to a distant place, person's use ? The answer made by the text-books is and then delivered to a third person. The bailee pertoo vague to be of much use. Some such expression is forms the mandate in ignorance of the true owner's title. generally used as, that any exercise of dominion incon- | Again, the stealer of goods bails them to another person sistent with the plaintiff's right of property in the goods to be taken care of at the place of such bailment until is a conversion. That is very much like answering a application for their re-delivery. The bailee performs question by stating it again in more elaborate terms, the mandate in ignorance of the true owner's title. Are because the question immediately arises, what exercise of both, or is either of these cases, a case of conversion by dominion is inconsistent with the plaintiff's right of the bailee? We have selected these cases because they property ? Some acts obviously do not amount to an seem to us to be illustrations of the way in which the exercise of dominion, as if I pat a man's horse as it two questions of form and substance are confused stands in the street; while some obviously do, as if together by the question of conversion. We do not I drink & man's wine. Some acte, again, are on | know that they are the best illustrations that could be the line. A man may do acts which may fairly be de selected, but we think they may suffice to give an inkling scribed as the exercise of dominion over property without of our meaning. The cases are not, to our mind, necess the authority of the owner, but it may be doubtful how | sarily identical in point of justice, but to make the far they can be said to be inconsistent with his rights of whole question one of conversion may render it dificus property. For instance, a man without negligence, in to give effect to any distinction between them. ignorance of the true owner's title, may become bailee It seems to us that under the present system of law of goods from a person who has no title to them, and and pleading, which knows nothing of forms of action, proceed to do acts of domipion to the goods which may, | make the question whether there has been a conversion more or less, prejudice the true owner. Take the cases or not, is oftentimes to apply a wholly obselete les

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We cannot say that we hold with the notion that makes the tortiousness of an act done to another in respect of ARREST OF SUSPECTED his property depend upon knowledge of the right of the true owner, or the intention to contravene that right.

PERSONS. A man who voluntarily does an act to property not his The excitement which has been caused by the Brighton own must take the risk. He chooses to rely on the title Railway Murder, and the many mistaken arrests which of the person giving him the mandate. Unless the have been made in consequence, lead naturally to the ex. carrier's case put by Bramwell, L.J., is to be regarded as amination of the extent of the power to arrest suspected depending on the carrier's being compelled to carry the

persons. It will be found that this power differs very goods, and so his act being not voluntary, we cannot think much according as the arrest is (1) by a constable with the law ought to be as the Lord Justice says it is. There

warrant; (2) by a constable without warrant; (3) by a is no such very great practical hardship. If the bail

private person, ment is in the course of a business carried on for profit,

Of arrest by a constable with warrant little need be as is generally the case, it is an ordinary incident of the said. Since the consolidation of the numerous prebusiness, for which the bailee must be taken to recoup

existing statutes on the subject by Jervis' Act (11 & 12 himself from his profits, if not by suing his bailor. On

Vict. c. 42), the practice has become pretty well known the other hand, it is a general incident of property, and and settled, and there has been little, if any, doubt as to necessary to its effectual protection, that no one should the law. It is well to point out, however, that whereas be entitled to deal with property except the true owner,

the warrant of a justice of the peace in one county must or those authorized by him, without being responsible be backed by another justice in another county, before for damage thereby occasioned. Assume that an act | it can be executed in such latter county, "a warrant from would be tortious if done by someone other than the

the chief or other justice of the Queen's Bench extends true owner, without a mandate at all; how can it all over the kingdom," and is tested England, so that it make any difference that some one gives a mandate who can be executed anywhere (see 4 Steph. Com., p. 347). has no title do so ?

As to arrest by a constable without warrant, it seems The law at present seems to us to be in great con- that at common law this may be done upon a reasonable fusion on this subject, and very uncertain, and it seems belief that the party has committed a felony. (See Griffin to us that the existing decisions are vitiated by the fact v. Coleman, 4 H. & N. 263, in which case it was held that that they proceed on the assumption, derived from the this power to arrest does not extend to cases of misdeold system, that the tortious act must amount to a con- I meanor. It is also laid down that in acting upon persion. But why should this be so ? The true ques.

charge made by a third person the constable must tion seems to us to be whether there has been a dealing exercise ordinary care and caution, and that, if having with property unauthorized by the true owner which has

done so, he apprehend a supposed felon upon a caused damage to the true owner. The question was reasonable charge with reference to the circumfurther complicated under the old system by the fact stances, he is justified, although it ultimately turn out that, as a necessary concomitant of the nature of con that no felony was committed (Buru's Justice, vol. version, the damages were the whole value of the goods. 1, p. 295, citing Hogg V. Ward, 3 H. & N. Some modern cases, such as Johnson v. Steer (15 C. B.

417, and other cases). So much for the common N. S. 320), had, however to some extent broken in on law, but it is material to observe that the power of a that doctrine. The damage caused by the tortious act constable to arrest without warrant is very preneed not necessarily be the value of the goods, but the cisely dealt with by statute. By 24 & 25 Vict. cc. 97, 100,

ally caused, when once the absolute necessity ss. 61, 66, “any constable or peace officer may take for a conversion is gone. If by the dealing of the inno- | into custody without warrant any person whom he shall cent bailee with the goods the owner is not really damni.

find lying or loitering in any highway, yard, or other fied, as may be the case when the act of the bailee is

place during the night, and whom he shall have good merely the performance of the mandate of a bailor, cause to suspect of having committed a felony" against then no action ought to lie, because there is no damage. either of those Acts. The felonies against those Acts This would in most cases dispose of the case of the ware include murder, larceny, and most of the felonies known houseman merely keeping goods and restoring them to to the law, but it is rather singular that neither by the person who has deposited them, and other such cases,

these or any other Acts (or, for the matter of that, (See judgment of Blackbum, J., in Hollins v. Fowler, at at common law) has a constable any greater power page 767). On the other hand, we cannot see why, if the of arrest where the crime suspected to have been act of the bailee has occasioned the damage to the true committed is murder than where it is a larceny of the owner, he should not bear the loss. For instance, if the

most petty character. Within the metropolitan police bailee removes the goods to a distant place, and the

district, however, the power is more extensive. By plaintiff's title is then discovered by him, and he does not 2 & 3 Vict. c. 47, s. 64, amending, but not repealing, deliver them there to the bailor or his order, but refuses 10 Geo. 4, c. 44, s. 7, any policeman may “take into to bring them back, then the measure of damage would custody without warrant all loose, idle, and disorderly be the damage sustained by the true owner, by reason persons whom he shall find disturbing the public peace, of his goods being at the distant place instead of where or whom he shall have good cause to suspect of having they were taken from. Under the old system it ap

committed any folony, misdemeanor, or breach of the parently would be conversion or nothing in such a case. peace, and all persons whom he shall find between sunset

We think if the matter is really analyzed to the and the hour of eight in the morning lying or loitering bottom, the case of the innocent bailee is analogous to in any highway, yard, or other place, and not giving a that of a person who has innocently bought chattels to satisfactory account of themselves." It is clear, howwhich the vendor had no title. Unless possession of ever, that the words, “ loose, idle, or disorderly persons," personal property is to be held as against the true owner are governing words in the first part of this section, and to be conclusive evidence of title in favour of innocent it has been so held upon similar words in the City parties dealing with it on the strength of such possession, Police Act (2 & 3 Vict. c. xciv.), s. 8: Bowditch v. we cannot understand on what principle the innocent Balchin (5 Ex. 378.) bailee is to be protected.

Upon these statutes, as compared with the common law, Whatever the true rule may be, it is much to be wished the question arises whether they repeal that part of the that, forms of action being abolished, the law on the common law which they do not re-enact, thus limiting the subject could be put on a more certain footing without power of arrest to the four corners of the statutes, or regard to antiquated nomenclature and the former whether they leave all the common law standing. We decisions of judges hampered by the then existing forms can find no authority upon this question, unless, indeed, of action.

the interpretation put upon thein by the executive can

H

be called an authority. It appears from Burn's Justice, vol. 1, p. 1059, that the following (inter alia) “ in.

CORRESPONDENCE. structions” have been issued for the guidance of con. stables :

EFFECT OF DISCLAIMER. “The constable must arrest anyone whom he sees in the act of committing a felony, or anyone whom another

[To the Editor of the Solicitors' Journal.] positively charges with having committed a felony, or whom Sir,-A landlord verbally lets two shops to A. on a another suspects of having committed a felony, if the yearly tenancy, at a rent of $200 per annum. A. aftersuspicion appear to be well founded, and provided the wards verbally sublets one of the shops to B. on a yearly person go suspecting go with the constable.

tenancy at a rent of £100 per annum. A. subsequently “ Though no charge be made, yet if the constable files his petition for liquidation, and the trustee under 80spects a person to have committed a felony, he should the liquidation wishes to disclaim the lease. What arrest him; and if he have reasonable grounds for his

effect will such disclaimer have upon the sub-lease ? Can suspicion he will be justified, even thongh it should after.

the landlord distrain on the goods in B.'s shop for the rent wards appear that no felony was in fact committed, but

of the two shops accruing subsequently to the disclaimer ? the constable must be cautious in thus acting on his own suspicions.

If so, an amendment of the law in this respect would "Generally, if the arrest was made discreetly and

not, I am sure, be out of place ; for it certainly seems fairly in pursuit of an offender, and not from any private

hard on B. (in the case supposed, and I should think malice or ill-will, the constable need not doubt that the

similar cases are constantly occurring) who cannot insist, law will proteot him."

as of right, on taking A.'s shop. The recent cases of

Smalley v. Hardinge and Ec parte Walton seem to bear These instructions, which are followed by others in rela.

on the question; but, unfortunately in the latter case, tion to rescue, breaking open doors, &c., seem to be clearly

the sub-lease comprised the whole of the premises justified by the decided cases, and to include the case of

demised by the original lease, and not part only as in the a mistaken arrest arising out of a mistaken identity. They make wo distinction between the various degrees

case in question.

INQUIRER. of felony. But the decided cases, as we have alreedy

(We should think that the landlord could distrain on remarked, do not touch the question whether the

the goods in B.'s shop for the rent of both shops. In statutes narrow the law, and for this very plain rerson

Ecc parte Walton (ante, p. 586) James, L.J., said that (so far as we have been able to discover), that the cases

“ When a sub-demise is made, the sub-tenant took the were decided before the statutes were passed.

property subject to all the original lessor's rights in rem, Lastly, with regard to the power of a private person to

though he was not liable upon the personal covenants of arrest without warrant, it seems that at common law the original lessec with the lessor. It would be a violathis is coincident with the power of a constable (see Guppy

tion of every principle of law and justice, and against all V. Brittlebank, 5 Price, 525), subject to this important common sense, to permit two men, by bargaining with limitation expressed by Lord Tenterden in Beckwith v.

each other, to affect any right of property of another Philby (6 B. & C. 635): “There is this distinction between

man, particularly any right of the owner from whom a private individual and a constable; in order to justify

they both derived title. And it would seem to be equally the former in causing the imprisonment of a person, he

against principle and against common honesty that a must not only make out a reasonable ground of lessee, by becoming bankrupt, should deprive the lessor

t he must prove that a felony has actually of his remedies in rem, or release a sub-lessee from the legal been committed [by someone], whereas a constable

liabilities and obligations to which the property was liable having reasonable ground to suspect that a felony has

in his hands before the bankruptcy.—En. S. J.] been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities." But by statute 14 & 15 Vict. c. 19, s. 11, | ADMISSION OF SOLICITORS IN AUSTRALIA. express authority is given to any person to apprehend

[To the Editor of the Solicitors' Journal.] persons found committing indictable offences in the

Sir,-I think the following is an answer to “Innight, and a similar authority without restriction as to hour, except in respect to "anything in the day-time,"

quirer's" question in your last week's issue. A Supreme is given by the Larceny Act, 1861, in respect tu persons

Court of New Zealand was established by Ordinance No. found committing offences against that Act.

1 of the 5th Vict. of the Legislative Ordinances of New

Again arises the awkward question-do these statutes limit the

Zealand. Section 13 of the Ordinance enacts that "the common law power? We cannot say for certain that

court shall inrol to practise therein as solicitors such they do not. At any rate, the whole law of “arrest

persons only as shall have been admitted as solicitors, without warrant” is in a very unsatisfactory state.

attorneys, or writers in one of the courts at Westminster, Nor is it the least of its defects that no compensation

Dublin, or Edinburgh; or shall have served such term whatever is provided for those unfortunate persons who

of clerkship with a solicitor of the court as shall be are arrested by mistake, but “on reasonable grounds."

required by the general rule thereof." This Ordinance Ever the “shilling and the breakfast," which were

is still in force. lately awarded as compensation in one of the numerous

In New South Wales, Queensland, and South Auscases of which we have lately heard, ought, we presu ne,

tralia, persons admitted in England are similarly entitled to be disallowed as a charge upon the public, when the

to be admitted solicitors of the Supreme Courts. As to account of the funds out of which this pitiful compen

Victoria, I cannot speak positively, but I believe the sation was paid comes to be audited.

same rule applies.

F. B. DE M. GIBBONS.

Mr. Justice Kay, having to attend the North-Eastern Circuit, bas risen for the present sittings.

The Western Jurist says that a judge who bad to sentence a prisoner in Danville to prison for eighteen years, for morder, the jury having made a “compromise verdict," in. formed the prisoner that the sentence was due to the “moral cowardice of twelve men.” Telling him that be considered him guilty, the judge added, “You should rejoice that you fell into the hands of, and were tried by, a jury of your peers.”

CLERK OF THE PEACE. [To the Editor of the Solicitors' Journal.] Sir, — Will you allow me access to your columns to inquire whether any of your subscribers can refer me to any instance in which a Clerk of the Peace has been either a deputy-lieutenant or under-sheriff ? LEX.

July 4.

cise of the discretion of the court, and not from a decision on CASES OF THE WEEK.

a point of law.-SOLICITORS, Freshfields & Williams ; Soames;

Rodgers & Clarkson.
TRUSTEE IN BANKRUPTCY-DISCLAIMER OP LEASEHOLD
INTEREST OF BANKRUPT-LEAVE OF COURT-BANKRUPTCY

MORTGAGE-ATTORNMENT CLAUSE_DISTRESS-APPLICAACT, 1869, ss. 23, 78-BANKRUPTCY RULES, 1871, R. 28.

TION OF PROCEEDS.-In a case of Ex parte Harrison, before In a case of Ex parte The East and West India Dock Com.

the Court of Appeal on the 30th ult., a question arose as pany, before the Court of Appeal on the 30th ult., the ques

to the right of a mortgagee to apply the proceeds of a ijon arose whether leave ought to be given to the trustee of

distress, levied under an attornment clause in the mortgage, a liquidating debtor to disclaim a leasehold interest of the

in paymeat of the principal of the mortgage debt as well as debtor under the following circumstances. The lessee of a of the interest due. The mortgage deed contained a recital public-house, in consideration of a premium, assigned the

that the mortgagee had agreed to advance the money upon house for the residue of the term to the debtor, the debtor

having the repayment thereof, with interest, “secured in covenanting in the ordinary way to pay the rent and observe

manner hereinafter appearing." The deed was executed on and perform the covenants, and to indemnify the lessee

the 8th of November, 1873. The mortgagee covenanted against the rent and covenants. A few years afterwards the

that, if the interest was punctually paid, he would not call debtor filed a liquidation petition, and the trustee, finding

in the principal before the 8th of November, 1880. A that the house was not worth the rent, applied to the court

power of sale was given, and the mortgagor, “for the confor leave to disclaim the debtor's interest under the lease.

sideration atoresaid)” attorned tenant from year to year of the The lessor opposed the application, on the ground that the

mortgaged property (which was in his occupation) to the effect of the disclaimer might be to destroy his rights against mortgages at a yearly rent which was equal in amount to a the original lessee under his covenants in the original lease. year's interest on the principal at the rate reserved, the rent But the lessor offered to undertake not to sue the trustee on

being made payable half-yearly. The deed contained a prothe covenants, and not to make any claim against the bank

vision for the reduction of the interest by one per cent. per rupt's estate. Mr. Registrar Murray gave leave to disclaim,

annum in case it should be paid within thirty days aft:r it and his decision was affirmed by the Court of Appeal (Lord

should become due. In March, 1880, the mortgagor filed a SELBORNE, C., and BAGGALLAY and Lush, L.JJ.). The

liquidation petition. On the 1st of June, 1880, the mortLORD CHANCELLOR, who delivered the judgment of the court,

gagee gave six months' notice to pay off the mortgage. The said that rule 28 no doubt required the court to exercise

trustee in the liquidation paid the interest up to the 18t of some judgment as to the propriety of allowing a disclaimer.

July, 1880. In November, 1880, the mortgagee distrained But the rule was made under the power conferred by section

for half a year's rent under the attornment clause up to the 78 of the Act, which enables the Lord Chancellor, with the

8th of November, and the question then arose whether he advice of the Chief Judge, from time to time to make general

was entitled to retain out of the proceeds of the distress more rules " for the effectual execution of this Act and of the

than the interest which was due from the 1st of July to the objects thereof, and the regulation of the practice and proced

8th of November. Ho claimed to retain the excess of the ure of bankruptcy petitions and the proceedings thereon," proceeds of the distress, beyond that interest, on account of and, after enumerating certain matters as to which regula

i principal. Bacon, C.J., held (29 W.R. 668) that the morttions may be made, adds, “and, as to any other matter or

gagee was entitled to do this, and the Court of Appeal (Lordi thing, whether similar or not to those above enumerated, in

SELBORNE, C., and BAGGALLAY and Lush, L.JJ.) affirmed respect of which it may be expedient to make rules for

the decision. The LORD CHANCELLOR said that, looking at the carrying into effect the objects of this Act." Therefore the

recital that the payment of principal and interest was to be rule was made and only could be made for the effectual exe

secured "in manner hereinafter appearing,” prima facie cution of the objects of section 23. The object of that sec.

the rent reserved by the attornment clause was applicable tion was to cut short by the trustee's disclaimer all liability

to the payment of interest when it became due, and of prinof the bankrupt's estate in the cases there mentioned, which

cipal when it became due. At the time when the distress included future liabilities under leases, leaving any person

was levied the whole of the principal was due, and some who was injured to prove against the bankrupt's estate for

interest. Why was not the fruit of the distress to be apthe injury done to him. On the face of the section it ap

plied to payment of the whole which was due? There peared that the power of disclaimer was to be exercised with

was nothing to the contrary in the deed, except the fact a view to the administration of the estate and for the benefit

that the amount fixed for the rent coincided exactly with of all the persous who were interested in that administration.

the amount of the interest, which was made payable on the If, therefore, in any particular case it appeared clear that,

same day, but which was made reducible at the option of the looking at that object only, the disclaimer ought to be

mortgagor, for the exercise of which option he was allowed allowed, the court ought not for any collateral reasons, such

& period of thirty days. But there was nothing to suspend as the interest of strangers to the bankruptcy, to refuse to

the right of distress during those thirty days. There was allow it. In the present case the only reason suggested for

nothing to prevent the mortgagee from applying the fruits refusing leave to disclaim was the interest of the lessor as

of the distress to payment of principal, and even if there was between himself and the original lessee. And the argument

not a shilling of interest due, there was nothing to prevent must come to this, that, when the bankrupt was the assignee

him from distraining for principal. This decision appears to of a lease, the court ought never to allow his trustee to dis

conflict with that of Malins, V.0, in the case of Hampson claim the lease if the lessor was willing to give such an

| v. Fellows (L. R. 6 Eq. 575).-SOLICITORS, Swann & Co. ; undertaking as bad been offered in the present case. That

Cole & Jackson. was a startling proposition, and it was inconsistent with the policy of section 23, as expressed on the face of it. If the

BILL OF SALE_DESCRIPTION OF GRANTOR_" WIDow" view of the majority of the Court of Exchequer in Smyth v.

-BILLS OF SALE ACT, 1878, s. 10.-In a case of North (20 W. R. 683, L. R. 7 Ex. 242), and the view of the | Ex parte Chapman, on the 30th ult., the Court of Appeal Court of Appeal in the recent case of Ex parte Walton

(Lord SELBORNE, C., and BAGGALLAY and Lush, L.JJ.) (ante, p. 585), was correct (and his lordship did not intend to

affirmed the decision of Bacon, C.J., that a widow who, intimate any opinion to the contrary), the disclaimer would

until & few weeks before she executed a bill of sale, had not affect the rights of the lessor against the original lessee.

been carrying on the business of a licensed victualler, and If, on the other hand, tbe view of these learned judges was

who was not then carrying on any business, but who incorrect, still it would be contrary to the policy of the

was in treaty for the taking of another public-house, statute to leave the bankrupt's estate liable to a liability from was sufficiently described on the registration of the bill which it would be relieved if the disclaimer was allowed.

of sale simply as a widow.-SOLICITORS, John Scaife; BrownThe undertaking offered would not give the estate the relief

low & Bowe. which would be given by the disclaimer. The appeal must, therefore, be dismissed. The appellants' counsel asked that the order giving leave to disclaim might be prefaced (as in CHOSE IN ACTION OF BANKRUPT-REVERBIONARY INEx parte Walton) with a declaration of the opinion of the TEREST—TRUSTEE IN BANKRUPTCY-PARTICULAR ASSIGNEE court that tbe rights of the lessors against the original lessee ¡ --PRIORITY-NOTICE_VENDOR AND PURCHASER-BANKwould not be prejudiced. The court declined to do this, and RUPTCY ACT, 1869, s. 22.-In a case of Palmer V. Locke, they also refused to give leave to appeal to the House of before the Court of Appeal on the 1st inst., a question was .Lords, on the ground that the appeal would be from an exer- l raised upon the construction of section 23 of the Bankruptcy

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