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is a disgrace to the Statute-book that so many dead Pro. presidents of the Probate, &c., Division shall be styled cedure Acts should continue to cumber it.
justices of the High Court. This is perhaps a step towards the abolition of that division, which might well
be consolidated with the Chancery Division by an Order THERE ARE SOME rather surprising statements in a in Council under section 32 of the Act of 1873. notice furnished to the Times of the dinner given at Maid Clause 10 at last abolishes that fictitious “Full Court stone last Tuesday by the members of the South-Eastern
of Divorce," which was shown to have a sufficient legal Circuit to Lord Justice BRAMWELL. Thus there are men
existence in Westhead v. Westhead (L. R. 2 P. D. 1) and tioned among his "contemporaries and rivals," " when other cases, and very properly provides that divorce appeals Mr. Bramwell joined the circuit in 1838, .. HONY.
shall be brought to the Court of Appeal instead of to such MAN (a judge for a year or two), . . . HANNEN
Full Court, while clause 11 furthers the same object in rela(judge of the Divorce Court), THESIGER (lately Lord tion to appeals under the Divorce Amendment Act, 1868. Justice), and Mr. J. C. Mathew (lately made a judge)." There is no express abolition of the Full Court; it is only We should scarcely have thought that Mr. BRAMWELL impliedly abolished by having its jurisdiction, under 20 would, in 1838, have had much to fear from the rivalry
& 21 Vict. c. 85," or under any other Act," taken away of Sir G. HONYMAN, who was called to the bar in 1849,
from it. Perhaps for the sake of greater clearness and or of Mr. HANNEN, who was called in 1848, or of Mr. caution an express abolition might be desirable. MATHEW, who was not called till 1854. And Lord Jus
The 12th clause is a very precise one. It runs thus:tice ThesiGER's “rivalry" could hardly be very formid. “A judge who was not present and acting as a member -able, for, as it happens, he was born in 1838, the year in of a divisional court of the High Court of Justice at the 'which Mr. BRAMWELL joined the circuit.
time when any decision wbich may be appealed from was made, or at the argument of the case decided, shall not for the purpose of the fourth section of the Supreme Court
of Judicatore Act, 1875, be deemed to be or to have been SOME LITTLE TIME ago we remarked that one of the ques.
a member of such divisional court." tions which must come to the front and press for a solution is, how far the system of trial by jury is to be re
The material part of the 4th section of the Act of tained for the purpose of civil actions. A correspond 1875 is :ent, by way of pointing this moral, says that in an action "No judge of the Court of Appeal shall sit as a judge by a house agent against a vendor, tried before a learned on the hearing of an appeal from any judgment or order judge at Westminster on the 8th inst., the house agent made by himself or made by any divisional court of the sought to prove that the defendant had contracted with High Court of which he was and is a member.” him to pay commission. The question for the jury was whether such a contract could be established. The judge
This section having judicially been held to be non
sense, would it be too much to ask the Legislature to summed up strongly in favour of the defendant, and the
repeal, and re-enact it in decent shape, with the omission jury returned a verdict for the defendant, it may be as
of the words “and is ” “ which must be rejected" sumed rather to the surprise of the court, as the judge addressing the jury said, " I thank you, gentlemen, very
(Fisher v. Val de Travers Asphalte Company, 24 W. R.
198, L. R. 1 C. P. D. 259), and with all other proper amend. much for your verdict; it is a difficult thing to obtain a verdict from a jury against agents of this sort, and these
ments? The only effect of the proposed amendment commission agents seem to think they can do as they
which we can discover is that, whereas by the existing likə."
law a judge is disqualified by having taken part in a decision only, a taking part in the hearing of an argument also is now to disqualify him. This seems right,
and is, of course, an additional argument, if one were THE MINOR PROVISIONS OF needed, for not having High Court members of the
Court of Appeal, Nothing can be more inconvenient in THE JUDICATURE BILL.
practice than for parties to come prepared for a hearing, We have already expressed our opinion upon those and to have to go away again because the case “cannot clauses in the Judicature Bill by which it is proposed to be lieard by the court as at present constituted.” reinforce the Court of Appeal. We now proceed to say | Before leaving this subject it may be well to suggest a few words concerning the numerous minor provisions that the time is come for removing the anomaly by which which the Bill contains. There are twenty-eight clauses judges of the Court of Appeal, who may also happen to in all, and the appeal clauses being four only, these be members of the House of Lords, may still sit on " minor provisions" take up twenty-four.
appeal from judgments to which they themselves may The 6th and 7th clauses provide for the appointment have been parties. Three is a quorum of the Court of of two judges of the Chancery Division, one to be ap- Appeal, and three is a quorum of the House of Lords. pointed in consequence of the proposed translation of If a case of great political or ecclesiastical interest were the Master of the Rolls “immediately after the passing to be heard by a Court of Appeal of which peer 3 of this Act," and the other to be appointed from time to happened to be acting members, and then came ap time under the Judicature Act, 1877, “ so as at all times for revision by the House of Lords, such peers might be to make due provision for the business of the Chancery | in an invidious position. It surely ought to be settled Division of the High Court of Justice : Provided that no by statute that such peers ought not to take part in the such appointment shall be made unless or until the num. hearing or decision of the second appal. ber of judges attached for the time being to the Chancery A very abundant caution provides in clause 13 for the Division of the High Court, other than the Lord Chan | nomination of election judges by the judges of the cellor, is by death, resignation, or otherwise, reduced Queen's Bench Division, instead of by the judges of the below five.” The object of this is to rectify Queen's Bench, Common Pleas, and Exchequer Divisions. the curious blunder in the Act of 1877, by reason of We had hoped, and still upon a renewed perusal of it which it was doubful whether or not the powers of that think, that the Order in Council under section 32 of Act would be exhausted by one appointment. The clause the Act of 1873 gave “ all such further powers as might by which the blunder will now be rectified is, we may be necessary” for the purpose of fusing the three observe, taken from the Bankruptcy Bill, so that that divisions into one; but it is, of course, desirable to measure will have one little limb the less to drag along. be on the safe side, especially in dealing with election
Clause 8 gives the Lord Chancellor power to direct that matters. the Rolls Court and Chambers may be used “by such judge The 14th clause is of great importance. It provides of the Chancery Division as shall be by order in that that the jurisdiction of the High Court in election and -behalf uamed," and clause 9 in effect provides that future registration cases "shall henceforth be final and conclu
sive, unless in any case it shall seem fit to the people that patronage is a perquisite of high office, and High Court to give special leave to appeal therefrom not a trust to be exercised for the public benefit. to her Majesty's Court of Appeal, whose decision in such Clauses 21, 22, and 23 seem to increase the powers of case shall be final and conclusive." It would take too the Treasury over appointments; and we should have much of our space to show (as we think we could show) expected that these matters had been sufficiently dealt that the jurisdiction of the High Court in these with by the Act of 1879. Clause 24 provides for the apcases is final under the present law. It may, how- pointment of persons to keep order, take care of and ever, be mentioned as at least certain--and it is a strong clean the Royal Courts of Justice. argument that such is the law-that no such case has Clause 25 provides for tbe transfer to the Master of been taken to the Court of Appeal during the five years the Rolls (with the concurrence of the Lord Chancellor which have elapsed since the commencement of the and the Lord Chief Justice) of the power given by section Judicature Acts. The clause, therefore, confers, and 14 of the Judicature Act, 1875, to the Chief Justice of does not restrict, as it appears to do, the right of England, the Master of the Rolls, the Chief Justice of appeal; and confers it subject to special leave. We are, the Common Pleas, and the Chief Baron, of adapting therefore, face to face with two questions-(1) ought enactments relating to solicitors. Clause 27 expressly there to be an appeal at all ? and (2) ought the appeal to | makes valid appointments made by tbe Lord Chief be restricted by leave? We incline to think that there | Justice of commissioners to take acknowledgments. ought to be no appeal at all. Election law, though import. Last, but not least, clause 28, reciting that “it is exant, is not difficult, and it is law in which the points pedient that the jurisdiction of county courts should be raised require speedy settlement.
exercised as far as conveniently may be in a manner The 15th clause is also a very important one. It pro- similar to that of the High Court," provides that the vides that the Winter Assizes Act, 1876, “shall hence. power of making county court rules shall extend to all forth extend to all assizes to be held at any time of the cases within the jurisdiction of county courts as to which year.” The Act in question, it will be remembered, Rules of the Supreme Court might be made. Is this allows counties to be united for the purpose of holding provision in anticipation of that reform which was assizes “where it appears to her Majesty, by reason of recommended in the second report of the Judicature the small number of prisoners, or otherwise, that it is Commission, “ that the county courts shouid become usually inexpedient to hold separate winter assizes for parts of the High Court, and should have unlimited juris. any county." The whole machinery of the Act is | diction, subject to a power of transfer when a claim worked by Orders in Council, to be laid before Parliament should exceed $50” ? indeed, but, while in force, to have effect as if enacted in the Act, which suggests no address by either House, &c., for the purpose of annulling them. We may expect strenuous opposition to this clause, which has, however, a very strong recommendation of the Judicature Com.
LEGITIMATION. missioners in its favour, and, if carried, will, we think, THE legitimation of children by the subsequent marriage redound with equal advantage to bench, bar, suitors, of their parents has never been acknowledged by the and public. But what is to be done with the high
law of England. He alone by English law is legitimate sheriffs f Would not this be a good opportunity for who is born of parents married before the time of his abolishing the assize duties of these officials, and for birth. Yet the doctrine that children born illegitimate handing them over to the chief constables of the counties
may be legitimated per subsequens matrimonium is of & in which the assizes should be held ? Clause 16 provides
very ancient date, and was first established in the for the nomination of sheriffs in the Queen's Bench
Roman law by Constantine, and in the canon law by Division, “at the same time and in the same manner as
Pope Alexander III., and it now prevails in Scotland, hath been heretofore accustomed in the Court of Ex- and also in France, Holland, and, it is believed, other chequer," and this clause, which seems useless otherwise,
countries of Europe. An unsuccessful attempt was inmay have its use in giving rise to a debate on the question, deed made in the reign of Henry III. to introduce the whether or not the assize duties of a high sheriff ought not
rule of canon law into the common law of England, and to be done away with. Clause 17, which provides for the resulted in the passing of the famous Statute of Merton swearing in of the Lord Mayor of London, might very
(20 Henry III.), containing a declaration by "all the well, we think, be replaced by a provision abolishing the
earls and barons, with one voice, that they would not swearing of that official in court altogether. The cere.
change the laws of the realm" by making those born mony is only a needless interruption of judicial business,
before matrimony legitimate. Although, however, legi. and sometimes has given occasion for very ill-judged
timation is unknown to English law, yet, inasmuch as orations, and the sooner it is dispensed with the better. it has been adopted by several foreign nations, questions
Clause 18 very properly reduces the number of judges | have from time to time arisen in our courts involving who are to fix Central Criminal Court Sessions from eight the point how far our law, in determining the succession or more to four or more, and clause 19 increases the to property in England, is bound to recognize legitinumber of puisne judge members of the Rule Com- mation, either by the doctrines of international law or mittee of the Supreme Court from three or more out by what is known as “the comity of nations." One of of nine members to four or more out of eight. Of the such questions has just been settled by the recent latter clause we have only to remark that this would | Judgment of the Court of Appeal in the case of Re be a good opportunity for introducing the elective Goodman's Trusts, reversing a decision of the Master system. The clause as it stands gives the Lord Chan | to the Rolls (reported 28 W. R. 902, L. R. 14 Ch. D. cellor for the time being and his nominees a clear | 619). This judgment deserves the attention of all who majority on the Rule Committee.
are interested in the progress of our English jurispru. Clause 20 deals with “patronage.” The patronages
dence. which fall vacant by the abolition of the two chiefships | The question raised by the appeal was whether are to go equally amongst the surviving chiefs—i.e., or not a child, legitimate for all purposes by the the Lord Chancellor, the Lord Chief Justice, and the law of its birthplace, but illegitimate by English law, Master of the Rolle, " in rotation.” We should have been | can take any share of the estate of an English intestate better pleased if it had been proposed to give them to as one of the next of kin. The following were briefly a “Patronage Committee" of five or three puisne judges. | the only material facts of the case :-A legacy, having Or might it not be convenient that the Rule Committee for lapsed by the death of the legatee in the testatrix's the time being should have the patronage ? Such time, became divisible amongst her next of kin. The a provision would at least utterly extinguish any noticn testatrix had six brothers and sisters, but they all prede. which may still possibly exist in the minds of unthinking ceased her, and only two left any issue. One of the
two, having had children in England by a woman not lowed that dictum, and it may therefore be taken to have his wife, went with them and their mother to Holland, ! expressed the law on this point prior to the recent de-where he became domiciled, and where he had another | cision of the Court of Appeal. Another point as to child by the same woman. After this child's birth the legitimation came before Vice-Chancellor Stuart in 1871, parents married in Holland, and the child was legitimated and he there, in a case of Skottowe v. Young (L. R. 11 according to the law of that country. The question ac Eq. 474), decided that a child, legitimated according to cordingly arose whether or not this child was one of the French law. ranks as a child under the English Legacy next of kin of the testatrix, and, as such, entitled to and Succession Duty Acts. Indeed it is, as was pointed share in the lapsed legacy. The Master of the Rolls de out by the Vice-Chancellor in that case, difficult to see cided without hesitation in the negative, holding that how such a child could, in any sense, be a “stranger in children in the 7th section of the statute of 22 blood.” & 23 Car. II., c. 10, means children according to English On the whole, the law on the subject under consideration law, and excludes a legitimated child, and that, I does not seem to be in a satisfactory state, and it would therefore, a legitimated child could not take under appear to lead to these rather anomalous results, that, apy section of the statute. On the appeal Lord while a child duly legitimated by the subsequent marriage Justice Lush agreed with that decision; but the of his parents would not inherit his intestate father's majority of the court (Lords Justices James and Cotton)
lands in England, yet he would share in the personal held the contrary opinion; and, after taking time to estate as one of the next of kin; and, though such a child consider the point, they have deliberately decided that would take as a “child," and therefore one of the next in administering the estate of an intestate dying domi. of kin under an intestacy, yet he would not take under ciled in England, the English courts will recognize a bequest by will to children. children legitimate according to the law of a foreign country, though illegitimate by English law, as legitimate for the purpose of succeeding to the intestate's personal estate. The question whether or not a legitimated child
CORRESPONDENCE. could succeed to lands as heir of his father in England was discussed in the case of Birtwhistle v. Vardill
CLERK OF THE PEACE. (5 B. & C. 438)—a case probably more fully and elaborately argued than any other; and finally, after the
[To the Editor of the Solicitors' Journal.] opinion of the judges had twice been taken, it was Sir,—In reply to the letter of your correspondent decided by the House of Lords, in 1840, that a child,
| “Lex," in this week's SOLICITORS' JOURNAL, I believe legitimate according to the law of Scotland by the
Mr. R. H. Wyatt, clerk of the peace for Surrey, is a marriage of his parents there subsequently to his birth,
deputy-lieutenant for counties Kent and Merioneth. could not succeed to land in England as heir to his Teddington, July 8.
EDWARD F. M. RYAN. father (see 7 Cl. & F. 895). Now, it is to be remarked [We believe that the point of our correspondent's that the law of Scotland as to legitimation is peculiar in inquiry was whether the same person could be both this respect, that the subsequent marriage of the parents clerk of the peace and a deputy-lieutenant for the same is, by a presumption or fiction of law, antedated to county.-ED. S. J.] the birth of the child; if, therefore, a child, legitimate by Scotch law by reason of such subsequent marriage, cannot inherit land as heir to his father in England, it
[To the Editor of the Solicitors' Journal.] would seem, à fortiori, that the result would be the same in the case of a child legitimated according to the law of
Sir,--In answer to the inquiry of “ Lex,” in your a country in which no euch presumption or fiction of law
last week's issue, I would refer him to the Law List, prevails-indeed, it has never been questioned since
where he will find that it is not at all unusual for a Birtwhistle v. Vardill that, according to English law
clerk of the peace to be either a deputy-lieutenant or in the succession to real estate in England, no child
under-sheriff. can take as heir who was not born after the marriage
As an example, Mr. F. W. Jones, of this city, is, and of its parents.
has been for some years past, both clerk of the peace Again, with regard to personal estate, it was decided
and under-sheriff for the city of Gloucester at one and
HENRY MORTON YORK.
the same time. in 1863, in Boyes v. Bedale (12 W. R. 232, 1 H. & M. 798), by Vice-Chancellor Wood, that in construing a
Gloucester, July 12. bequest by a testator domiciled in England, the word "children” does not include a legitimated child ; and the result is the same whether the word be qualified
[To the Editor of the Solicitors' Journal.] by the epithet "legitimate" or not. As to the pre Sir,-In reply to “ Lex's” query, I beg to state that cise question, however, raised by the case of Re Good- | Mr. John M. Davenport, a solicitor at Oxford, and clerk man's Trusts, there appears to have been no direct of the peace for the county, formerly held, in addition authority prior to the decision of the Master of the to the latter office, the position of under-sheriff for Rolls, except a dictum of Vice-Chancellor Wood in the the county of Oxford (see Law Lists previous to 1876). case of Boyes v. Bedale cited above, in which the Vice
C. Gough. Chancellor expresses himself thus: “I take it that the 1 7, Granville-square, Pentonville, July 8. language of the Statute of Distributions must be dealt with in the same way. If an intestate dies domiciled in England, the division of his property is governed throughout by English law, and no person could take On the 7th inst., in the House of Commons, Mr. Gregory by representation under that statute unless legitimate asked the Attorney-General whether any report or recomby the law of England” (see 1 H. & M. 805). This
mendations had been agreed upon by the committee apcase, however, was followed and entirely concurred in
pointed to consider the operation of the Judicature Acts and by ViceChancellor Kindersley in 1865 in a case of Re Wil
the procedure under them; and, if not, when such report or son's Trusts (14 W. R. 161, L. R. 1 Eq. 247), afterwards
recommendations might be expected. The Attoroey.General
replied that the report and the recommendations were made affirmed in the House of Lords in Shaw v. Gould (L. R.
some seven or eight weeks ago. They had been circulated 3 H. L. 55), and the dictum of Vice-Chancellor Wood
by the Lord Chancellor among the judges, in order that the was not called in question ; moreover, the Master of the Committee of Judges might act on the report. The Lord Rolls, in deciding Re Goodman's Trusts, stated that had Chancellor thought it better to place it in the hands of the he felt any doubt upon the subject, he should have fol. ) ;udges before he laid it on the table.
cation shonld have been made to the court for the
parpone. Bat, instead of doing that, the solioi'or took on CASES OF THE WEEK.
himself the responsibility of dirooting the receiver not to
act on the order of the court. This was a contempt of LIQUIDATION PETITION-RECEIVER-INTERFERENCE WITH court, and a person wbo bad thos aoted ought to be made POBSESSION-CONTEMPT OF COURT-LIABILITY TO ACCOUNT Socountable in the bankraptoy jarisdiction.-SOLICITORS,
SOLICITOR--COURT OF BANKRUPTCY-JURISDICTION.-10 | John Hayward ; James Neal. a case of Ex parte Hayward, before the Court of Appeal on the 7th ipst., a question arose as to the
COMPOSITION RESOLUTIONS-SUBSEQUENT AGREEMENT BY liability to account in the Court of Badkroptoy of a
DEBTOR TO PAY ONE CREDITOR IN FOLL-BANKRUPTCY Act, person who bad interfered with the discharge of the
1869, s. 126.-In the case of Ex parte Barrow, before the duties of a receiver appointed by the court under &
Court of Appeal on the 8th inst., the question arose whether, liquidation petition. Immediately after the filing of a
after resolutions accepting a composition have been passed by liquidation petition by some traders a receiver uf their
creditors under section 126 of the Bankruptcy Act, 1869, and property was appointed by the court, but no manager of
before the time has come for carrying out the provisions of their business was appointed. The debtors were advised
the resolutions, a valid agreement can be entered into by their solicitor, who had filed the petition, to continge
between the debtor and one of the creditors, wlio is bound carrying on their business, and they acted on this advice.
by the composition, for the payment of his debt in full. Ia The receiver on bis appointment took possession of the
Ex parte Barrow, the creditors had resolved to accept a com. debtors' property and effects at tbeir place of business, and
position, payable in three instalments, respectively iwo, four, sent out notices to the debtors to the estate, calling on them
and six months from the registration of the resolations. to pay their debts to him. The solicitor then told him not Before the first instalment became due, the debtor agreed to colleot any further sams, or to apply to the debtors to with one of the creditors, who was bound by the resolutions, the estate to pay their debts to him, as it would ruin the to pay him his debt in full, the creditor agreeing to contique business and the good will. He told the receiver that the supplying the debtor with goods on credit. He afterwards debtors intended to pay a composition, and that it would gave the creditor bills for the balance of his original debt, be unnecessary for him to interfere with the management after allowing for the composition, and the creditor claimed of the business, beyond bolding pogression as receiver, to prove for the amount of the bills in other liquidation profurther tban be (the solicitor) directed bim from time to ceedings subsequently instituted by the debtor. Bacon, C.J., time, as the business was being properly attended to by | held that the proof had been rightly rejected by the trustee, the debtors under his (the solicitor's) soperintendence. and his decision was affirmed by the Court of Appeal (Lord Tbe receiver raieed some objection to thie, but the solici- SELBORNE, C., and BRETT and Cotton, L.JJ.). Reliance was tor told him that he would see that the management of placed on the principle wbich has been often laid down by the businees was properly attended to, and offered to in the court, that after composition resolutions bave been dempify him against any liability, and wrote him a letter passed, the debtor is master of his estate, and the creditors to that effect. The business was carried on in this way have no lien upon it. And the care of Jakeman v. Cook (27 for two months, at the end of wbich time the debtors were W. R. 171, L. R. 4 Ex. D. 26), was cited, in which it was beld adjudicated bankrupts, resolations wbich bad been passed tbat an agreement by a liquidating debtor, who had obtained 3 to accept a composition baving fallen through in conse discharge from his creditors, to pay one of tbe creditors in fall, in quence of some informality. In carrying on the business
consideration of the creditor agreeing to supply him with meat tbe baokrnpts bad received and paid various some of on credit, was a valid agreement, and that the creditor conld money. Upon tbe application of the trustee in tbe bank. | maintain an action against the debtor for his origin 1 debt. roptcy, Mr. Registrar Hazlitt ordered the solicitor to file
Lord SELBORNE, C., who delivered the judgment of the court, an account of all transactions and dealings of the bank. said that the composition was a statutory One under sction ropts, from the date of the appointment of the receiver to
126, which provided that, if at two successive meetings of the date of the adjudication, and of all sums of money
the creditors there were certain majorities in nuinber and received by or on account of the bankrupts, or either of
value of the creditors present in favour of a proposed com. tbom, or by any person or persons on behalf of their estate
position, that composition should be absolutely binding, not during the same period with bis or their consent or per
oply on the creditors who assented to it, but also on those mission ; and also of all 8008 paid by or on account of the
who dissented from it, provided that their names and the pankrupte, or by ary person or persons on their behalf. or / amounts of their deb's were inserted in the statement proon bebalf of their estate, during tbe same period, prefacing
duced by the debtor at the meetings, and by the express the order with a declaration that the solicitor was liable for
words of the section a composition thus accepted was to be any loss which might appear on the taking of the accounts to
accepted in satisfaction of the debts due to the creditors, and to have been soffered by the estate by reason of the man
its provisions were not to be added to or varied, except by agement or carrying on of the business by the bankrupts
resolutions passed at a subsequent meeting of the creditors, or either of them, or by the sclicitor on their behall, during
and in a similar manner. Bills given for a debt wbich the same period. It was urged on the solicitor's behalf
was satisfied by the bankruptcy law were primâ facie that there was no jurisdiction in the Bapkroptcy Court to
given without any consideration. The onus of proving make him responsible for givirg bis cli nts bad advice.
that the debtor had made default in fulfiiling the terms But the Court of Appeal (Lord SELBORNE, C., and BRETT
of the composition was on the appellant, and he had and COTTON, L.JJ.) beld that the order was substantially
failed satisfactorily to discharge that onus. Jakeman v. right, though the accounts ought to have been direoted
Cook was a case, not of composition, but of liquidation by
arrangement, and appeared to have no baring whatever against the solicitor jointly with the receiver; and the trustee then gave an undertaking to apply for an order
on the preseut case, wbich was one of statutory composiagainst the receiver. The court also said that there should
tion. The agreement was made, not only be'ore the statul. be an inquiry whether any and what loss bad been sustained
tory composition was exhausted by the fulfilment of its
terms, but even bfore the first instalment had become by reason of the carrying on of the business, baving regard to the price afterwards realized by the sale of the busi
due. It might be that after a composition had been fully
worked out and all the instalments paid, the posit on of negg, and that tbe trustee must undertake to render all the the debtor might he like that of a discharged bankrupt os assistance he could to the solicitor in the making ont of liquidatino
liquidating debtor, and that an agreement made by the accounts, and to use any powers which be possessed 88 him with creditor, such as in Jakeman v. Cook, would trustee to compel the bankrupts to do the same. Lord
be supported. But in the present case everything was SEL BORNE, C., said that the solicitor was held liable, not done before any of the instalments had been paid to 20 for the advice which be bad given to bis clients, but for
of the creditors. By section 126 it was expressly provided taking on bimself to give instructions to the receiver not that no addition o ör variation in a composition shou to discharge the duties of his office. The undertaking he made without a resolution of the creditors. If there col gave to indemnify the receiver against liability showed be no addition for the benefit of all the creditors, how could that he himself thonght be ought not to interfere with the here be an addition for the benefit of one creditor, and receiver, except on the terms of becoming personally respon- / bebind the backs of the others, and without any comm sible. Cotron, L.J., said that, if it was considered de. tion to them? It appeared to his lordship impossibl
ble that a sirable that the business should be carried on, an appli. composition for the benefit of all the creditors an
an agreement by the debtor for the benefit of a par. general, yet that, if its generality had been limited to the ticular creditor could stand together. He was con- subject matter of the action, the plaintiff would have been firmed in this view by a consideration of the consequences entitled to an answer to it, and that tbe defendant ought which might result from upholding such an agreement. Its to be compelled to answer it in this limited form, and validity could not depend on the amount of the creditor's COTTON, L.J., acceded to this view. But JESSEL, M.R., debt. If it were valid in one case it would be equally so if and BRETT, L.J., were of opinion that, as the plaiotiff bad the creditor's debt were very large, and if the composition come to the court insisting that the defendant should had been forced on the other creditors by reason of the answer the interrogatory in the anlimited form in which amount of his debt and by his vote alone. And, if the it had been pat, he could not succeed on the appeal, on the agreement could be validly made at such a time and underground that the original order should have been for an such circumstances as in the present case, he could not see answer in the more limited form.-SOLICITORS, Ford & wbat would prevent the amount of the debt being paid down | Ford ; Moresby-White, Salmond, & Co. at once, before any of the instalments were paid to the creditors, and thus the whole of the assets might be swept away by the one creditor. He was confirmed in this view by the ARBITRATION-SETTING ASIDE AWARD-REMITTING TO -decision of the Court of Appeal in Ex parte Sydney (23) ARBITRATION.-In a case of In re Sharpe, before ihCourt of
W.R. 205, L. R. 10 Ch. 208), which, thongh not similar | Appeal on the 13th inst., an appeal was brought from an order in its circumstances, depended upon similar principles. He of the Queen's Bench Division setting aside an award in an must add that there were many decisions both in courts of arbitration, and refusing to remit the case to the arbitrators. law and in courts of equity against the validity of underhand The Court of Appeal (JESSEL, M.R., and BRETT and Cotton, dealings with a particular creditor contemporaneously with | L.JJ.) held that the award bad been properly set aside, bea composition with the general body of creditors, and the cause it had been made without notice to the parties, so that principles of those decisions were fully and entirely applicable they had no opportunity of arguing their case before the to such a case as the present. It was said that fresh credit arbitrators. Such a course of procedure was contrary to was given by the appellant to the debtor, and that in this natural justice. But the court held that the case ought to way there was a consideration for the agreement. That be remitted to the arbitrators, if they were still willing to might be so in a case like Jakeman v. Cook, where there act. JESSEL, M.R., said that, as a general rule, the fact that was no question of good faith with the other creditors, and arbitrators had made a mistake was not a sufficient reason no question of compliance or non-compliance with the terms for not sending the case back to them. Corrupt dealing or of composition resolutions. But no consideration could utter incompetence of the arbitrators might be sufficient support an agreement which was inconsistent with good faith reasons, and there might be other sufficient reasons. But to the other creditors, and inconsistent with the spirit of sec there must be strong reasons, founded on the exercise of a tion 126.
judicial discretion, for not sending the case back. BRETT, [This decision appears somewhat difficult to reconcile L.J., said that it was a matter of judicial discretion whether with that of the Court of Appeal (James, `Mellish, and the case should be sent back, and it was impossible to eng. Baggallay, L.JJ., and Mellor, J.) in Ex parte Burrell (24 merate all the reasons which would justify the court in W. R. 353, L. R. 1 Ch. D. 547), in which it was held that | refusing to send a case back. In the present case there had where creditors had agreed to accept a composition payable been nothing but a mistake on the part of the arbitrators, in three instalments, the third instalment being guaranteed and that was not a sufficient reason. There was nothing to by a surety, a secret agreement by the debtor with the show that, if the matter went back to them, they would not surety to indemnify him against liability, by a transfer of then make a proper a ward. But, of course, if any one of a part of his assets to him, was valid as against the trustee them would not act, it would be impossible to send the case in sobsequent liquidation proceedings instituted by the back.-SOLICITORS, Radcliffe, Cator, & Martineau ; G. T. debtor in consequence of his failure to pay the second Woodroffe. instalment of the composition.]-SOLICITORS, 1. Montagu; -C. C. Becke, Nortbamptov.
“MONTHS”— LUNAR OR CALENDAR. — In & cage of
Hutton v. Brown, before Fry, J., on tbe 8th inst., the ques. DISCOVERY-POSTPONEMENT TILL AFTER TRIAL-DISCRE
tion arose whether the word “ months" in an agreement for TION OF COURT-ORD. 31, R. 19.-In a case of Parker v.
the purchase of furniture by instalments was to be read as Wells, before the Court of Appeal on the 13th inst., a ques.
meaning lunar months or calendar months. The owner of tion arose as to the exereise of the power given to the court
some furniture borrowed £1,300 on the security of it, the by rule 19 of order 31, which provides that, “ if the party
lender becoming the purchaser of it, and he then entered into from whom discovery of any kind or inspection is sought
an agreement to let it to the borrower at a weekly rent of objects to the same, or any part thereof, the court may, it
£22 10s. The hiring was to be for twenty-six months, and satisfied that the right to the discovery or inspection sought
at the end of the twenty-six months, if all the weekly pay. depends on the determination of any issue or question in
meots were duiy made, the furniture was to become the dispute in the action, or that for any other reason it is desir
property of the borrower again. The lender contended that able that any issue or question in dispute in the action
the months were calendar months, a construction the effect should be determined before deciding upon the right to the
of which would be to give him eight more weekly instalments discovery or inspection, order that such issue or question
than if they were lunar months. Fry, J., said that primâ be determined first, and reserve the question as to the
facie the rule of law was that months meant lunar months, and discovery or inspection." The appeal was from an order
there was nothing in the present case sollicient to rebut the made by Fry, J., that the defendant should file a further
presumption. In mortgages, no doubt, months were always answer to some interrogatories delivered by the plaint ff.
understood to mean calendar months, but that was because JESSEL, M.R., said that in exercising the discretion which
the interest on mortgage money was a fixed sum per annum, was undoubtedly reposed in the court by this rule (and he
and then, of course, the half-year's interest would be for six
calendar months. Tbat rule did not apply to a hiring agreewas far from saying that the court had not a similar discretion before the Judicature Act), he always had regard
ment of this kind.-SOLICITORS, W. Maynard; Champion,
Robinson, d. Poole. to the nature of the discovery sought, and in particular to the questions whether it would assist the plaintiff at the trial, and whether it was fair to the defendant or oppressive towards him. In the present case the answers required would
CASES BEFORE THE BANKRUPTCY not assist the plaintiff at the trial, and it would be unfair
REGISTRARS. and oppressive to require him to give them, and there. | fore the order should be discharged. BRETT, L.J., was of
(Before Mr. RegistrAR BROUGHAM, acting as Chief Jadge.) opinion that the practice as to answers to interrogatories
Jane 30.--Ex parte Huoper, Re Hooper. was not now regulated by the old practice of the Court of J. K. H. and J. K. H., jun., co-partners in trade, being inChancery, but tbat the roles under the Judicature Act debted to their bankers in a large sum of m were intended to form a new practice intermediate between
£5 000 farther upon the security of property belonging to
J. K. H., sen. Such property was to be held as collateral the more rigid practice of the Court of Chancery and the
security for the due payment of the said loan and all other practice which had grown up in the common law conrts
moneys in respec of which the parties might become liable to under the Common Law Procedure Act. As to one of the the bankers. The partners becam, further indebted to the interrogatories, it wag contended that though it was too bankers, and from time to time deposite1 with them partnership