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WE HAVE SEVERAL TIMES referred to the effect of sec- WHEN, upon the decease of a trader, his business is tion 56 of the Indian Act II. of 1874, under which the carried on by his executor, the rights and liabilities of Administrators General of Bengal, Madras, and Bombay | the latter, as well as the equitable right of property in were appointed, in removing the ground on which the the assets employed in the business at any particular old Court of Chancery allowed an executor, to whom no moment, as, for instance, on the bankruptcy of the legacy was given in lis character of executor, a com. executor, are not generally to be understood without mission of five per cent. on all assets of the testator | attentive consideration; and as several recent cases in the collected by him in India. An agitation has been com- reports illustrate some of the principles applicable in menced for the repeal of this provision, and on Monday such circumstances, it may be useful to call attention to last a deputation waited on Lord HARTINGTON to present the subject, even if these late cases can scarcely be said a memorial asking the Government to take steps to to add to the already existing rules of law. attain this result. They are reported to have com-/ If we begin with the position of the executor plained that "the law as it stood prevented per personally, it must be recollected that the continuance sons from appointing executors of their estates." of a business is scarcely a legal conception at all. If this was the only complaint of the deputation we “Business” consists of certain contracts by a person to think their case was very weak, for we do not know that buy or sell goods, or to perform services or works; and there could be a better proof of the confidence felt in the | although one person may come after another in the system of administration by the Administrators-General occupation of particular premises, and make contracts of than the non-appointment of executors. If it is alleged the same kind and with the same persons as the contracts that executors are not appointed because they cannot be made by his predecessor, yet the succession can scarcely got to act without receiving commission, the reply is that be said to have any legal signification, except in so far as there is nothing to prevent testators from leaving legacies it may involve a contract between the outgoing and into the persons they wish to appoint executors, expressly coming trader that the latter shall have every facility made dependent on their acting. It can hardly be for making such contracts, or, in other words, shall have doubted that in a country like India, where Europeans the goodwill of the business ; for the rights and obligadie far from their friends, a system of administration by tions of each party in respect of the contracts made by a public officer must be advantageous, provided due him are clearly and absolutely distinct from those made safeguards are imposed for the proper execution of his by the other. Whether the business is continued by a duties by such officer. The system established by the purchaser or by an executor, the position in this particular Act above referred to appears to afford satisfactory safe- is the same. In each case the creditors of the business guards. There is first the requirement of competent will have to look primarily to the trader's personal legal ability on the part of the Administrator-General ; liability, and as in the case of a purchaser they will Next, the requirement of large security for the due have nothing else to look to, so also it may be in the case administration of his office; there are also stringent rules of an executor. The liability of the latter is so purely & us to the investment of assets in his hands; and, lastly, personal liability that, notwithstanding his right to pledge there is a half-yearly examination of his accounts by or sell the specific asscts of his testator, it is settled that auditors appointed by Government. We may add that his general engagements do not bind the testator's assets in 1855 a similar attempt was made to obtain a relaxa- (Farhall v. Farhall, 20 W. R. 157, L. R. 7 Ch. 123); tion of the rule prohibiting private executors and and consequently the right to the assets employed in the administrators from receiving commission, but the business at the testator's decease will, subject to the conLegislative Council, under the guidance of Sir LAURENCE ditions to be presently referred to, remain what it then Peel, Sir BARNES Peacock, and Mr. ALLEN, refused to was without reference to the executor's business con• aesent to the alteration.
tracts. Nor can the executor, even by professing to trade as executor, prevent the application of these rigid
rules (Labouchere v. Tupper, 5 W. R. 798, 11 Moo. P. C. THE HOUSE OF LORDS has altered the amended patron- |198; In re Leeds Banking Company, 14 W. R. 255, age clause of the Judicature Bill, and has restored the L. R. 1 Ch. 242). The contract would still remain name of the Lord Chancellor in place of the senior a personal contract in respect of which he would be puisne judge, notwithstanding the protest of the Lord chargeable de bonis propriis, and not de bonis testatoris. Chancellor that he did not wish “personally, or even | The creditors of the business as conducted by him have officially, to add this particular patronage to the responsi. primarily no concern with the testator's affairs. Even if bilities of his office." The Lord Chancellor has not the testator has directed or empowered his executors to bitherto had any share in the patronage dealt with by carry on his business, and to continue to employ for the the clause-that is, the appointment of masters or clerks | purpose the capital in the business at the time of his in the Central Office-and since the clause providing | decease, or any part of his general estate by way of that the appointment of masters or principal officers further capital, the remedy of the creditors of the busiwhose duties have relation solely or chiefly to the ness since the death is still by action against the executor Queen's Bench Division shall be made “ with the con- | on bis contract (Owen v. Delamere, 21 W. R. 218, L. R. currence of the Lord Chief Justice," has been struck 15 Eq. 134); and it is only if that remedy fail, as by out, the effect of the change will be to give the Lord | the bankruptcy or insolvency of the executor, that such Chancellor uncontrolled patronage as to officers with creditors can claim, by virtue of the direction contained whose duties he may be entirely unfamiliar.
in the will, a specific right against the assets authorized to be employed in the business so as to have such
assets administered by a court of equity for their In the course of a case tried at Westminster on Wednesday
benefit. The nature of this right, if it was ever week, the actuary of the London and Liverpool and Globe Insu.
ny doubtful, has now been clearly defined by the rance Office stated, in cross-examination, that his office paid
Master of the Rolls in the case of In re Johnson a commission to agents and also to solicitors, from whom the
(29 W. R. 168, L. R. 15 Ch. D. 548), where it is introduction of new business generally cane, whereupon, Mr.
laid down that it is not on the ground of anything in the Justice Field is reported to have remarked that no doubt
contract with the executor that the creditor has such * solicitors, from their position, bad a great power of influencing | right, but of the special equity that the beneficiary ou business of this kind, but it was a great question whether or / whose behalf the trade was carried on shall not take the not they ought to take commissions.
benefit of his trustee's trading until the debts incurred
by the trustee in making the profit have been satisfied. bankruptoy. And in In re Fells (25 W. R. 382, L. R. 4 The trustee is bound to satisfy them, and can claim to Ch. D. 512), it seems to have been held that the rights of be indemnified out of the testutor's estate in respect of the testator's creditors might be defeated without the aid his own payments in doing so, in so far as the estate was of the doctrine of bankruptcy as to reputed ownership. authorized to be employed in the business. If he fails There the administratrix carried on business for four to satisfy these debts, then the creditors are entitled to years and then married; and Bacon, O.J., ruled that on stand in the trustee's shoes and avail themselves of his the second marriage the goods passed absolutely to the right of indemnity. But if the trustee is in default, audhusband, and that a creditor of the testator would have indebted to the estate, he can claim no indemnity except to rely upon his remedy for a devastavit and could not on the terms of making good his default, or by showing | follow the goods. that the profit brought to the estate by means of the trade debts incurred exceeds the amount in which he is indebted to it. Consequently, in the case under con. sideration, the fact that he was in default was held to
THE DOCTRINE OF “LUMLEY preclude the creditors from making any claim against the estate except upon the terms above mentioned.
v. GYE” CONSIDERED. This reference to a specific claim against the testator's In the recent case of Bowen v. Hall (29 W. R. 367, assets, apart from the personal remedy against the L. R. 6 Q. B. D. 333) a point of considerable importance executor, leads to the inquiry as to the position at any was decided by the Court of Appeal. It was there held particular moment of the assets of a business continued that an action lies against a person who maliciously inby an executor. For such assets are not to be considered duces another to break his contract of exclusive personal indiscriminately as assets of the executor as a trader, or service with an employer where the natural consequence as assets of the testator. In so far as they consist of of such breach of contract is to cause damage to the goods bought by the executor, or of moneys owing to | employer, although the relation of master and servant him in the course of the business done by him, the does not exist between the employer and employed. The assets are his property, and if, in the acquisition of such question here raised is the same as that raised in Lumley property, he has sold the goods of, or collected the v. Gye (1 W. R. 432, 2 E. & B. 216), the decision in which moneys due to, his testator's estate, he is liable to account case was, of course, not binding on the Court of Appeal. to the estate for the amount of his receipts in respect The question has been considered to be one of a doubtful of such sale and collection (per James, L.J., Er parte | character, inasmuch as Sir John Coleridge, in a very Morley, 21 W. R. 942, L. R. 8 Ch. 1032). But in so powerfully reasoned judgment, dissented from the view far as the assets consist of property existing in specie at expressed by the majority of the court. In the case of the death of the testator, the position is that, although Bowen v. Hall the Lord Chief Justice also dissented the legal property in them is in the executor, yet the from the decision of the majority (Lord Selborne, C., and creditors of the testator have something in the nature of Brett, J.). He stated in his judgment that there had a specific right to them, inasmuch as they can always been great lawyers who are well known to have thought claim to have such assets administered by the court for that Lumley v. Gye was wrongly decided, and in partheir berefit. It is true that their right is not an ticular Willes, J. absolute right in rem, because it is subject to the There is much to be said on both sides. We are executor's power to sell or dispose of the property, and not disposed to think that abstract and technical even after a decree for administration, this power of sale reasoning carries one very far towards a solution of or disposition remains in the executor if there has been this sort of question. The law on such a matter no order for an injunction or receiver (Berry v. Gibbons, | does, or ought to, depend on general expediency. Brett, 21 W. R. 754, L. R. 8 Ch. 747). But it is a rigbt | L.J., in giving judgment, says, “The decision of the in rem to this extent, that the creditors can demand to majority (in Lumley v. Gye) will be seen on a careful have the goods, whilst in possession of the executor, consideration of their judgments to have been founded treated as goods of their testator, and not as goods of on two chains of reasoning. First, that wherever a man the executor. Unless they abandon this right, it does does an act which, in law and in fact, is a wrongful act, not appear how they can, as to such goods, be and such an act as may, as a natural and probable con. prejudiced by the fact of the subsequent trading, sequence of it, produce injury to another, and which in for the trade creditors of the executor have not, in the particular case does produce such an injury, an acany case, any claim to the testator's assets, except in the tion on the case would lie. This is the proposition to be event of their being able to avail themselves of the execu- deduced from the case of Ashby v. White (1 Sm. L. O., tor's right to indemnity out of the property authorized 8th ed., p. 264). If these conditions are satisfied, the by the testator to be employed in the trade, and action does not the less lie because the natural and prob. such a claim to indemnity can scarcely be created able consequence of the act complained of is an act done by the testator so as to defeat the rights of his own by a third person, or because such act so done by the creditors. Therefore, 80 soon as the assets of the third person is a breach of duty or contract by him, or an business are separated into those specifically existing at act illegal on his part, or an act otherwise imposing an the testator's decease, and those subsequently acquired, it actionable liability on him.” The learned Lord Justice is only necessary, in order to ascertain the relative rights then proceeds to dispose of the reasoning founded on of the testator's creditors and the executor's creditors, the well-known case of Vicars v. Wilcox (8 East. 1), to ask, bave the former abandoned their rights? It a decision which has been treated by some as establishseems that they must be active in asserting such rights ing that, wherever the damage results from the voluntary or they will be taken to have abandoned them. Although act of a third party intervening between the act of it was long ago settled that property in the hands of an the defendant and such damage, the damage is too reexecutor in his representative character does not prima mote. It seems to us that the reasoning of the learned facie pass to his creditors as being within his order and Lord Justice successfully disposes of this line of argu. disposition or reputed ownership, yet it is otherwise if ment. If it be established that the voluntary act of the they are allowed to remain in his possession under such third party immediately occasioning the damage can be circumstances as may induce his creditors to suppose reasonably considered as the natural result of the act of that they are his own. In Kitchen v. Ibbetson (22 W. R. the defendant, it seems to us that there is no ground for 68, L. R. 17 Eq. 46), it was held that an administratrix suggesting that the damage is too remote. Many cases having such possession and continuing the business for might be instanced as showing this. If a man procures fifteen months must be taken to have the order and dis- the commission of a murder, he is guilty of murder. Why position of the goods with the consent of the true owner should not the same principle apply with regard to civil so as to entitle her own creditors to them upon her ability ? The question seems to be whether the act of
the third party can be reasonably considered, though of railway companies. Certain judges, who might, pervoluntary, the patural result of the defendant's act. haps, be termed by some narrow-minded, strive to very There may be cases where the act, though in fact result. clearly define, and almost, one might say, contract, the ing from the defendant's act, may be considered as not a limits which separate what is tortious or wrongful from natural or probable result of it, as, for instance, if in con what is lawful, on the principle that it is better on the sequence of a slander persons had assembled and thrown whole for the community that fas and nefas should be the person slandered into a pond, the case suggested by separated by plain, clearly distingaishable lines, about Lord Ellenborough in Vicars v. Wilcox. Where the which there can be no doubt or fluctuation. Others, on reasoning of Lord Justice Brett does not seem 80 con. | the other hand, tend rather to think that such hard and clusive is in the preceding step. The difficulty does not fast lines are not really suited to the exigencies of civilizaseem to us really to be as to the remoteness of the damage, tion, but only serve as charts to the tortiously minded, but as to the foundation of the cause of action. The advertizing them how they may pursue their passage we have cited really assumes the datum which is wrongful enterprizes without running on to legal the foundation of the doctrine of Ashby v. White. The rocks or shoals. It is difficult to say which judgment all through, as it seems to us, assumes rather tendency is the safer; probably every lawyer is conscious than proves that the act of the defendant is a wrongful of being at one time actuated by one of these tendencies, act. The Lord Justice says later on,“ We think it cannot end at another by the other, and possibly neither ought be doubted that a malicious act, such as is above de to be the entirely governing tendency. The difficulty scribed, is a wrongful act both in law and in fact." It is that we feel with regard to the ratio decidendi of the clear that the cause of action is not es contractu, and majority is, we believe, somewhat similar to that expressed therefore it must be ex delicto, or a tort. A tort involves by the Lord Chief Justice in the latter part of his judg. as its correlative, a duty. We feel a shade of difficulty ment. He seems there to feel a difficulty in seeing how us to the duty. It will be observed that the exact nature the malicious motive can make that actionable which, of the duty is not very distinctly defined. Malice is without it, would not be actionable. If a man acts stated to be essential to the action. It is clear within his right, then the motive is immaterial. If there from the language of the judges, and indeed from is no duty apart from motive not to abstain from the facts of the case itself, that malice includes, persuading another to break his contract, and if a man, not only the malicious intention of injuring the endeavouring to persuade another to break his contract, plaintiff, but the desire to benefit self at the and succeeding, but doing so without malice, cannot be expense of the plaintiff. Lord Justice Brett says: “If | sued, then why should the action lie if there be malice ? the persuasion be used for the indirect purpose of injur It is only the case of a man maliciously availing himself ing the plaintiff, or of benefiting the defendant at the of his rights. This, if we do not misunderstand it, is expence of the plaintiff, it is a malicious act, which is in somewhat the line of his lordship's argument. We are law and in fact a wrong act, and therefore a wrong not quite sure that we go the whole length with it, for it ful act, and therefore an actionable act, if injury ensues seems to us that it would, if pushed to its full length, be from it.” Is the proposition to be considered to be as fatal to the action for malicious prosecution; but, though wide as this-viz., that wherever a person induces it may possibly go too far, it strongly confirms what we another to break his contract, knowing that such con. have before said. In this class of actions, where malice tract exists, and, therefore, that the act he is procuring is made an essential element, you practically leave the is wrongful on the part of the contractor as against the legality or otherwise of what the defendant has done to other party to the contract, there is a cause of action ? depend on whether the jury think, on the whole, We are afraid this must be too wide a definition, and he ought or ought not to have done it, subject, of might possibly lead to surprising results. Suppose A course, to some amount of restraint on the part man has made an improvident promise of marriage, and of the court. It may be inevitable that this a sensible friend, for his welfare, persuades him to should be so, but in such cases “jus est vigum." break it. That could hardly be thought actionable, Lord Coleridge, C.J., suggests this consideration when though the friend undoubtedly procures a wrongful act | he says, “I do not know, except in the case of Lumley in one sense. Again, suppose a young man of high v. Gye, that it has ever been held that the same person, birth promises to marry a young woman of very humble for doing the same thing, under the same circumstances, station, and his high-born and haughty parents, as in a with the same result, is actionable or not actionable transpontine melodrama, with no regard for his welfare, | according to whether his inward motive was selfish or but for their own pride only, as the jury might find, unselfish for what he did. I think the inquiries to which procure a breach of his promise. It may be said that this view of the law would lead are dangerous, and inthese are not serious illustrations, but we are seeking expedient inquiries for courts of justice ; judges are not the principle, and it may fairly be tested by any | very fit for them and juries are very unfit." possible cases.
It seems to us that the safest way to look at the decisions In all earnestness we are disposed to think that in Lumley v. Gye and Brown v. Hall is to regard the case the decision of the majority was right in the with which they deal as analogous to the action for particular case, and was in accordanco with the seducing a servant from service, and not to endeavour expediency of the case; but we are puzzled with regard to extract any very sweeping principle from them with to the limitations of the doctrine. It is one which does regard to the actionability or otherwise of procuring & not seem to stop at the particular sort of breach of con breach of contract. Regarded in this narrow light, wo tract which was maliciously procured by the defendant. | are disposed to think the decisions right, notwithstanding It is very easy to say that “malice" is a necessary in- | the eminence of the dissentients; but we should think if gredient of the cause of action, but are we really driven, the decisions are to be regarded as establishing the more upon translating legal terms into plain English, and sweeping proposition to which we have adverted, that dealing with them as realities, to say that it is for the there would be grave reasons for questioning how the jury, upon consideration of all the circumstances of the application of such a principle would be found to work particular case, to say when it is wrongful to procure a | in other cases. breach of contract and when it is not ? We believe it to have been, and to be, a strong tendency-perhaps a growing tendency of the judges whom we may, notwithstanding the Judicature Acts, still call the common law judges, to leave the essence of legal questions to the
At an auction held at Henstridge last Friday by Messrs, decision of juries under cover of such terms as “malice."
Chinnock, Galsworthy, & Chinnock, the total quantity of
land offered being 1042. Or. 36p., with a rental of £220, the There have, no doubt, boen struggles in the other direc- whole realized the sum of $6,910, being 31 years' purchase, tion, as in the cases with regard to negligence on the part or £66 per acre.
CORRESPONDENCE. RIGHT OF “RESIDUARY LEGATEE” TO UN.
DOES PAYMENT OF PURCHASE-MONEY FOR DISPOSED OF REALTY.
LAND TAKE A CASE OUT OF THE STATUTE (In re Methuen and Blore's Contract, M.R., 29 W. R. I
OF FRAUDS? 656.) Though the words“ residuary legatee" in a will are, of
[To the Editor of the Solicitors' Journal.] course, prima facie, applicable only to personalty, they
| Sir,- In a written judgment of the Court of Appeal will include realty if the context sufficiently shows an
(read by Baggallay, L.J.), in the recent case of Alderson intention that they should do so. Thus, where a testator
V. Maddison (29 W. R. 556), there occurs a statement of stated at the commencement of his will that he had dis
the law to which I venture to take exception. posed by will of his estate, and then disposed of parts of
The object of the passage in which the statement is his real property and appointed a “ residuary legatee,” it
found is to show that acts of part performance of a was held that the testator intended the u regidúary | parol agreement as to an interest in land must, in order legatee” to take the residue of the real as well as of the I to be held suicient to.
to be held sufficient to exclude the operation of the personal property (Hughes v. Pritchard, 25 W. R. 761,
Statute of Frauds, be such as are unequivocally referable L. R. 6 Ch. D. 24). The real ground of this decision was
to the agreement; and the statement, in illustration of more clearly put by Lord Justice Bramwell than by the
this, to which I refer, is as follows:-" Thus, payment other members of the court. He said, “ After giving
of part, or even of the whole, of the purchase-money is gifts of personalty and devises of realty, the testator
not sufficient to exclude the operation of the statute, finishes this way: 'I make my sister and others re
unless it is shown that the payment was made in respect siduary legatees,' that is to say, legatees of the residue. |
of the particular land and the particular interest in the Residue of what? Why residue of that of which he
land which is the subject of the parol agreement.” had been previously disposing of parts. Of what had
It is to the words italicised that I take exception. In he been previously disposing of parts ? Of his realty
Clinan v. Cooke (1 Sch. & Lef. 22), Lord Redesdale held and personalty, and it seems to me almost a matter of
that payment of money was not a part performance to demonstration that he is saying here residue of my real
take a case cut of the statute; he there said (p. 41):and personal estate.” In other words, the question
“Payment of money is not part performance, for it whether the residue of the real estate is dealt with is to
may be repaid"; and in Freme v. Dawson (14 Ves. 386, be settled by ascertaining whether the testator has pre
at p. 388), Sir William Grant explains the doctrine of viously disposed of parts of his real estate.
payment of purchase-money not being a part performIn In re Methuen and Blore's Contract, a testatrix
ance in a way inconsistent with the notion of the commenced her will by saying, “I commit to paper my
doctrine's arising from there being anything equivocal wishes respecting the disposal of my property, and give
about the purpose for which the money is paid. Sir this as my last will and testament. Everything I am
William Grant said :-" Lord Redesdale, in a case before possessed of I leave to my sister, S.P., for her life. After
him [Clinan v. Cooke], states his opinion that payment her decease I give and devise as here annexed.” After
of money is not a part performance: get there the act some pecuniary bequests she proceeded to “ leave"
| can hardly be said to be equivocal in its nature; as the F. P. M. “residuary legatee after the demise of her
payment of a price presupposes a sale : but the money sister.” There was here, it will be observed, no specific
may be repaid, and the parties are restored to their gift of real property, although, under the words “ every
former situation.” thing I am possessed of," the sister S. P. took a life
It hardly seems necessary further to quote authorities; interest in tho realty. The Master of the Rolls thought
but I may mention Watt v. Evans (4 Y. & C. 579.) thut there was no indication of an intention that the
This was a distinct decision that part payment of residuary legatee should take, after the death of the
purchase-money was insufficient to take a case out of the tenant for life, the real property which was given to her
statute, and, certainly, no question was made about the for life. The result would seem to be that, in order for
fact of the money having been paid for the particular the words “residuary legatee” to operate as a gift of
estate. I may also refer to what was said by Lord the residue of real estate, the testator must have
Justice Knight Bruce in Flughes v. Morris (2 De G. M. previously made specific devises of parts of his real
& G. 356), and by Lord Justice Cotton in Brittain v.
Rossiter (27 W. R. 482), in confirmation of the doctrine property.
that payment of purchase-money is not a part per
formance sufficient to take a case out of the statute. The following special questions will be treated at the I will now only, in further support of this doctrine, Dablin Congress of the Social Science Association draw attention to the circumstance that, in many of the on October 3–8:-1.-Department of Jurisprudence cases which have arisen upon the question whether a and the Amendment of the Law.-International and particular written contract, sought to be enforced Municipal Law Sections--1. Is it desirable that there against a vendor, was sufficient to satisfy the statute, a should be periodical meetings of representatives of deposit must have been paid, as it was in the recent various states to which all disputed international questions
cases of Sale v. Lambert (22 W. R. 478, L. R. 18 Eq. 1), should be referred ? 2. Should the procedure on private
and Potter v. Duffield (22 W. R. 585, L. R. 18 Eq. 4). Bill legislation in reference to local improvements be
Now it is obvious that if part payment of the purchase. amended so as to facilitate inquiries on the spot by Parliamentary Committees or otherwise ? 3. Are any and
money for specific land is a sufficient part performance what alterations in the jury laws desirable ? Repression
to take a case out of the statute, the question whether of Crime Section-1, How can the work of Discharged
the written contract complies with the statute must be Prisoners' Aid Societies be improved, and is it desirable
immaterial. to secure the co-operation of the police with liberated
I am aware that I have not referred particularly to priguners on their reform? 2. What results have been the case of payment of the whole of the purchase-money, brought about by the Irish Sunday Closing Act in con- but the dictum of Lord Justice Knight Bruce above nection with crime in Ireland, and what fartber steps can referred to extends even to that; it does not, however, the Legislature take for the decrease of intemperance ? seem to have Lord St. Leonards' concurrence : see Sug. 3. It is desirable that persons convicted of serious V. & P. (14th edition), p. 152. The case seems not very offences, instead of being sentenced to confinement for likely to arise.
A. J. W. different periode, should remain in prison until reformed. Temple, July 20. (This question has been submitted by the president of the American Social Science Association, Professor Wayland, who will arrange for the sending over of a paper).
where it was held that the husband was liable for the THE MEETING OF THE INCORPORATED LAW costs of the marriage settlement, has been overruled ? SOCIETY.
Helps v. Clayton was commented upon in your issue [To the Editor of the Solicitors' Journal.]
of May 29, 1880.
J. L. P. Sir,- In their annual report the committee say, “It was proposed at the meetings held in May that an outside committee should be formed to make suggestions
CASES OF THE WEEK. before the special general meeting should be held. The council assent with pleasure to this, and suggest that at the general meeting a committee of this character be
| BILL OF SALE-ACT OF BANKRUPTCY-ASSIGNMENT OF appointed, and that it consist of some of the members
WHOLE PROPERTY TO SECURE PAST DEBT-FRESH EQUIVA
LENT - GOODWILL OF HOTEL, — Io a case of Ex parte who have taken part in the debates, with any additions
Beevers, before the Court of Appeal on the 21st inst., the that may be suggested."
question aroge whether a bill of sale, which had been Now, what was this outside committee, and how was
executed by a liquidating debtor a few months before the it proposed ? By my following resolution, which was
filing of his petition, was void as against the trustee in the then in print, it was proposed :
liquidation, on the ground that it was an assignment of “That a committee be chosen from the members of the substantially the whole of the debtor's property, to secure society for the purpose of recommending what changes & pre-existing debt, without any fresh equivalent. The might be beneficial in the organization and functions of debtor kept a hotel, of which he held a lease. The bill of the society, so as to make it more useful to the public salo pas executed on the 10th of Jane, 1880, to secure the and the members, and more representative of the wishes repayment of a loan of £800, which had been made by the and interests of the profession at large, and that such grantees to the grantor in Marcb, 1879, without any committee consist of the following gentlemen :-"
security being then given by the grantor. The grantees It is true this was not in terms a committee upon legal
had been pressing him for repayment, and had threatened procedure, but it was the only committee proposed at
to take immediate proceedings against him, and the deed the meetings in May last, and its scope was sufficiently
contained a recital that at bis request they bad agreed to
allow him a further period of three months for repayment wide to have embraced that subject. But how did the
of the £800, upon baving the same further secured as council treat it at the adjourned general meeting in July under the presidency of Mr. Druce ?
thereinafter appeared, and on the conditions thereinFirst, Mr.
after set forth. The deed then, in consideration of Lake gets up and says with hot haste that he shall
the premises, assigned to the grantees all the stockresent it as a vote of censure if passed. Then when in-trade. fixtures, furniture, utensils, and other effects Mr. Munton moves an amendment, making it exactly in
belonging to or used in or about the hotel, or in terms consonant with the report, Mr. Paine gets up and the business carried on there, and also the goodwill of makes three or four speeches saying it is not an amend. the hotel, and the justices', excise, and customs licences ment and is out of order. The meeting gradually granted or to be granted in respect of the hotel, to hold to dwindles away in both numbers and disgust, until å the grantees absolutely, subject to a proviso for redemption mere handful of members, in sheer despair at doing on payment of the £800 with interest, on September 10, anything, throw themselves upon the council, in the
1880. The proviso for redemption was, however, expressed hope that a committee will be conceded. Nothing of
to be “subject, however, to all the covenants, powers, prothe kind. Mr. Grinbam Keen and Mr. Melmoth
visoes, and conditions hereinafter set forth.” It was also Walters magnanimously but vainly endeavoured to
provided that, “but subject as aforesaid," until default should
be made in payment of the moneys thereby secured or any correct their colleagues on tbe council, and prevent
part thereof, the grantor should retain the enjoyment and a fiasco. It was all to no purpose. Although the
possession of the property assigned. And then it was promembers met and adopted the report, the council pre vided that, if he should make default in payment on the day vented them from carrying it into effect. If the ap thereinbefore appointed, or (whether such default should pointment of an independent committee be a vote of have been made or not) when, and so often as the grantees censure, why did the council acquiesce in it? How should, at any time or times thereafter, in their absolute diswould the appointment of a committee such as I sug. cretion, consider the deed or the property thereby assigoed, gested in May be any more a vote of censure than that or their title thereto, to be in any wise endangered or prewhich the connail themselves in their report agree to Ljudiced, it should be lawful for them, without any previous The observation of Mr. Paine, that “the state of things
| notice or demand, verbal, written, or otherwise, to take which existed when the promise in the report was made
possession of and thenceforth to hold the property assigned, no longer existed ” was perfectly idle. Whether the
and to sell the same and retain the amount due to them out of Legal Procedure Committee published their proceedings
the proceeds of sale. Tbe lease of the hotel was not included
| in the deed. On September 21. 1880, the grantor designed or not, it would be equally necessary for the society to the lease of the hotel to some other persons for £500, ana hold special meetings and to appoint committees to look on October 1 he filed a liquidation petition. The trustee in after the public interests and our own. The judges the liquidation claimed to have the bill of sale declared roid cannot, and do not, do this properly, and unless solicitors as against him, on the ground that it comprised substantially make their voices heard upon this question they might | the whole of the debtor's, and that no fresh equivalent was just as well wipe themselves out of existence.
given for it. There was evidence that the lease of the hotel If the council imagine that they can run away from was worth nothing without the goodwill and the licences. their own report in this way with impunity, they are It was contended on bebalf of the grantees of the bill of sale greatly mistaken. I have been urged to claim a seat
that the lease of the hotel formed the substantial exception upon the council, and to take stronger measures than I
from the assignment, as was indeed shown by its selling, have done, but my object solely is to unite the profes.
£500. The goodwill of tbe botel, as was said by Jessel, sion into one harmonious whole, to put down envy and
M.R., in Ex parte Punnett (29 W. R. 129. L. R. 16 Ch. D. jealousy, and, in making our work more profitable to
226, 233), was not a personal goodwill, but passed with the
lease. It, therefore, passed by the assignment of September ourselves, to see that it is far more serviceable than it
21, and the assignment of it by the bill of sale passed now has been to the general public. EDMUND KIMBER.
ing to the grantees. Consequently the bill of sale was 22, Queen-street, City, E.C., July 26.
an assignment of substantially tbe whole of the debtor property. But, if it wag, still a fresh equivalent was gik.
for it by the grantees in the three months' forbearance Word COSTS OF MARRIAGE SETTLEMENT. they allowed the debtor. The court (Lord SELBORNEL? [To the Editor of the Solicitors' Journal.]
and BRETT and COTTON, L.JJ.), however, held that on
ground could the bill of sale be supported. Lord SELBOR Sir Will any of your readers kindly inform the that the deed purported to contain an agreement. writer through your columns whether Helps v. Clayton, | months' forbearance by the grantees, but it kept the