Page images
PDF
EPUB

very difficult to say what that requirement means, we we do not see why it should be insisted on. The amend-/ SECOND MORTGAGES BY ment is probably made in anticipation of an extension of

CLIENTS TO SOLICITORS. the jurisdiction, and increase of business, of district registries. The proposal that barristers shall be eligible for MR. JUSTICE FRY's startling decision in Cockburn v. the post has excited strong opposition on the part of the Edwards (ante, p. 117, L. R. 16 Ch. D. 393) came beforo law societies, and we certainly think it is unjust that the Court of Appeal on Tuesday, and a note of the result local solicitors should be deprived of the kind of pre

will be found elsewhere. It will be remembered tha sumptive claim which was given to them by the Judica the facts of the case were that a solicitor who had nego ture Act, 1873.

tiated for a client a first mortgage to a third person for £450, took a second mortgage of the property to himself

to secure £50, the balance of the sum required by the IT HAS BEEN SUGGESTED that litigation promoted by

client. The second mortgage, which was prepared by such bodies as the Church Association, is within the

the solicitor mortgagee, contained a power of sale Statutes of Maintenance. If this be the law, those who

without any limitation on its exercise ; and the second advance money for the conduct of the defences of im

mortgagee, without notice to the mortgagor, and pugned clergymen would be equally liable to punishment.

without any interest being in arrear, sold the property But we do not think that the law is as has been sug.

| under this power for £630. It was alleged by the gested. It was decided in Tisdale v. Bedington (Cro.

| plaintiff that the sale was at an undervalue, but Mr. Eliz. 594) that an action does not lie for maintenance in

Justice Fry thought that the price was not inadequate, the spiritual court. The report, which is very short, is

He held, however, that the defendant ought not to have in these words: “Action upon the Statute of Mainten

allowed the plaintiff to execute the mortgage “in such ance, for maintaining a suit in the spiritual court. WAR

au unusual form” without fully explaining the effect of BURTON moved that this action lay not, for the statute of

it to him, and that the onus was on the defendant to 1 Ric. 2, c. 4, whereupon this action is founded, is to be intended only of maintaining suits in the courts of common

show that he had given that full explanation. Upon law; and upon this view of the statute the whole court

the evidence he thought that the defendant had

not discharged this onus, and he had failed to was of that opinion, and willed him to demur." And it

prove that he had given notice to the plaintiff of is added that “DREw remembered a case in the court, in

his intention to sell the property. Consequently, Easter Term, 37 Eliz., Constantine v. Barns, whereupon

the plaintiff was entitled to judgment for damages, it was ruled that no action lay for maintaining a suit in

together with the costs of the action as between party the spiritual court.”

and party; and the damages must include the following heads-(1) the costs of the sale of the property ; (2) the

costs of re-investing the £630 in the purchase of a similar On Monday last, in the House of Commons. Sir R. Cross property; (3) the increased value of the property (thero suggested that the Supreme Court of Judicature Bill I should being some evidence that the property in the neighbour. be divided into two parts, one having reference to the re- hood had considerably improved in value); (4) the extra constitution of the court consequent on the removal of the costs of the action beyond the party and party costs. The Master of the Rolls to the Court of Appeal, and the other Court of Appeal have affirmed the decision as regards dealing with the question of legal patronage, which last, he the liability of the defendant, but have differed from it thought, might be postponed for the present session. The as regards the measure of damages laid down by Mr. Attorney-General said that it was regarded as essentially

Justice Fry. We are not concerned to discuss the latter necessary to provide for the strengthening of the Court of Appeal. The question of patronage, though not so pressing,

point further than to express our surprise that the was one of great importance, but it would not be unduly put

learned judge could have fallen into the errors corrected forward for discussion if some interim arrangement could be

by the Court of Appeal. But as to the general question made for dealing with it.

of the liability of the defendant in the recent case, it On the 28th inst., in the House of Commons, Mr. Stanley

seems to us that there is a great deal to be said against Leighton called attention to the want of information with

the view adopted by the Court of Appeal. reference to the “Suitors' Fands” in chancery, and moved

The question of the defendant's liability obviously do. that the future lists of unclaimed money be issued with cross

pended on whether it is or is not usual for second morta references triennially, stating the amount of fund in court, gages to contain an unrestricted power of sale. If it is with the names and last-known addresses of persons supposed usual, then the solicitor was not wrong in inserting such to be entitled ; together with the date of the last decree. He a power in his mortgage. Now, if this question is to be said there was a large amount of money belonging to many settled by the practice of conveyancers in drawing first persons who did not claim it, because there was no sufficient mortgages, the answer would be plain. Except in cases publication of list of names of those entitled, who were there. where the security is very insufficient, or sometimes in fore kept in ignorance of their rights. In this way the mortgages to secure current accounts at bankers, we spirit of the Act of Parliament on the subject was violated, I should say that mortgages drawn in and so much secrecy was maintained that persons were not

conveyancers' able to claim the money that was due to them. Lists ought

chambers always contain the restrictive proviso. But, as to be published overy three years. They were due in 1873,

a matter of fact, by far the greater number of mort1876, and 1879, and the fourth was due in 1882. But only

gages, and especially of second mortgages, are drawn by two lists had been published, and it had required much

solicitors; hence it is the practice of solicitors which pressure to obtain these. It was said to be the fault of

must settle the question. We are satisfied, from facts the Financial Secretary of the Treasury, who would not within our own knowledge, and from inquiries provide the Chancery Paymaster with the staff that was re which we have made, that in a very large number of cases quired to get out the lists. Those that had been published the restrictive proviso is omitted, even in first mortgages. were not as useful as they might be, for, although they pro. / We have no doubt that most of our readers are acquainted fessed to be alpbabetical, names were not to be found under with lithographed forms of mortgage, in constant use in their initial letters. He concluded by moving the resolution. Lord F. Cavendish was understood to say that arrangements

large offices in various parts of the country, which do not had been made by which delay in the publication of future

contain the proviso. It is to be observed, also, that in lists would be avoided. The form in which the lists were

Mr. Davidson's Concise Precedents—a work which is, published was settled by Lord Cranworth, when Lord Chan

deservedly, held in high esteem in solicitors' offices-a cellor, and the matter was in the hands of the Lord Chan.

note is appended to the proviso (10th ed., p. 149) pointcellor for the time being. Those who were responsible for

ing out that “this proviso is, in most cases, of little praclooking after these funds, in the interest of suitors and of the

| tical value, and may be omitted; for a mortgagee is not public, were of opinion that it was not desirable to make disposed to sell the property if he can get his money by some of the changes suggested, and for these reasons it was demanding it.” In second mortgages we are con. bis duty to resist the motion. The motion was negatived. fident that the omission of the proviso is usual, at all

TRADING BY AN EXECUTOR.

II.

events in many parts of the country. If it is not usual everywhere, it ought to be. There are dangers in dealing with an equity of redemption, with which every lawyer is acquainted, and which fully justify arming a second mort. gagee with more summary powers than are needed by a first mortgagee. The second mortgagee, moreover, has, comparatively rarely a clearly sufficient security for his money. In the recent case, the Master of the Rolls admitted that "he was not prepared to say that the right to exercise the power of sale in a second mortgage ought necessarily to be limited in the same way as was usual in a first mortgage" ; but as no evid. ence had been adduced as to the practice, he could not hold that it was the usual practice to omit the proviso. It is greatly to be regretted that the Council of the Incorporated Law Society were not applied to before the hearing of the appeal to collect evidence on a point of so much importance to the profession.

The results of the decision may be very serious. It is possible that it may put a stop to the advance of money by solicitors to clients on second mortgages of the clients property. No prudent solicitor will accept a second mortgage with the restrictive clause, and if he follows the course suggested in the recent case and omits the clause, informing his client of the consequences of the omission, how is he to ensure that, years afterwards, he will be prepared with evidence that he has completely explained the consequences of the omission to his client ? According to the recent case the onus of proving that the explanation was given is thrown on the solicitor. Would Mr. Justice Fry accept as sufficient evidence an entry in the solicitor's diary? We trow not; and if so, how is the solicitor to ensure the preservation of evidence that the explanation was given ? • But Lord Justice Brett seems to think that it would be desirable to check the practice of solicitors lending money to clients on second mortgages in order to make up the sum required. The practice, he is reported to bave said, “gave the solicitor very great power. . . . It would be much better for a solicitor not to lend money to his own clients at all.” This is a specimen of the style of observation and opinion of which we have sometimes to complain in the otherwise admirable decisions of the Court of Appeal. Some of the learned judges who eit in that court seem to think that everything can be settled upon abstract considerations, without regard to the wants and convenience of the community. Does Lord Justice Brett know anything of the practice of builders in and near large towns? If not, let him ask the first builder he meets whether the invariable practice is not for the builder to buy land, erect houses on it, and then apply to his solicitor to obtain a mortgage for him, in order to enable him to repeat the operation. The solicitor cannot always, or perhaps often, obtain a sufficient aadvance on a first mortgage, nor can he get anyone to

take a second mortgage for the balance. He has, therefore, to advance it himself. He gets five per cent. interest, for which he runs all the risks of a second mortgagee. The result of " checking" this practice will be extremely serious to builders, and it is very much to be hoped that the Court of Appeal will take an early opportunity of availing itself of the loophole which the Master of the Rolls, with his invariable sagacity, has left open, in case it can be shown that the omission of the restrictive proviso is ugual in the case of second mortgages.

WE last week considered some recent cases illustrative of the law affecting the rights of creditors, as well against the executor continuing his testator's business as against the assets of the business for the time being, irrespective of any question of partnership. The executor's personal liability where the testator's business was a partnership concern depends upon the question whether the business done since the testator's decease is to be considered in law as having been done by the executor jointly with the surviving partners, or as having been done by the latter alone. The principles upon which the courts act in deciding whether or not one person is to be treated as a quasi-partner with others, so as to render him liable to the creditors of the firm for its debts (independently of any question as to their rights as partners inter se), have been gradually growing in clearness since Cox v. Hickman (8 H. L. C. 268), until, instead of the old rule that sharing in profits is the test of such liability, we have another and totally distinct rule-namely, that the point is to be settled with reference to the question whether the person to be made liable is in the relation of principal to the person carrying on the business, and that whatever negatives the fact of agency is evidence which may rebut the presumption which would otherwise arise from participation in profits. Whether the sharing in profits is a sharing by a person in his own right or in a representative capacity was, under the old rule, considered to be immaterial ; and it is immaterial still, except in so far as the executor's title to profits may be a title absolutely precluding the possibility of the relation of priucipal and agent between the parties. Consequently, where the executor's right to profits depended upon a deed of partnership which provided that, on the death of a partner during the partnership term, the business should be continued by the survivors, and that they should pay the deceased partner's representatives his share of the profits, the executors were held not to be liable on a contract made by the survivors. Lord Justice (then Mr. Baron) Bramwell adopted the principle stated in Shaw v. Galt (16 Ir. C. L. Rep. 357), which has so frequently been quoted with approval, that " a partnership, even as to third parties, is not constituted by the mere fact of two or more persons participating in the net profits of a business ; but the existence of such a partnership implies also the existence of such a relation between those persons as that each of them is a principal and each an agent for the others" ; and he rested his judgment upon the ground that the oxecutors had no right of interference or control ; that they could neither make contracts on behalf of the firm, nor prevent it from entering into what business engagements it pleased (Holme v. Hammond, 20 W. R. 747, L. R. 7 Ex. 218).

In that case there was no capital in the firm belong ing to the testator; but his lordship expressly stated that the existence of such capital, and the right of the executors either to withdraw it or not, were immaterial 12 the decision. The judgments of the other members of the court are not so clear upon this latter point, and the liability of executors continuing their testator's capital in a firm, and receiving profits out of the business, has not been fully discussed since the decision of the House of Lords in Cox v. Hickman settled the law upon the principle above referred to. But having regard to the way in which that principle has been applied in subsequent cases, there can be no doubt that an executor actius in accordance with the provisions of partnership articles, which provide for the retention of the testator's capital in the business, and the payment of profits to his executor, upon terms wbich leave him no discretion, could never be made personally liable for the acts of the

firm ; and this notwithstanding the law laid down | Labouchere v. Tupper (5 W. R. 798, 11 Moo. P. C. 198), | which must be considered as applicable only to & Case

The London sittings, says the Times reporter, have consisted of only five working days, and only four special jury and about twice that number of common jury cases have been disposed of,

A Government Bill has been printed wbich proposes to suspend for a limited time,“ with a view to the future consideration of the cases by Parliament," the elections of members for the following cities and boroughs :-Boston, · Canterbury, Chester, Gloucester, Macclesfield, Oxford, and Sandwich.

where the articles provide, in express terms, for the neither the creditors of the firm, on the one hand, nor the executor being personally a partner in the business. But outgoing or deceased partner on the other, are to be dewhere, under the articles, the executor is not bound, but prived by implication of their right to have the prophas the usual right of executors to wind up the business, erty of the firm applied in the ordinary manner (Ex it cannot at present be considered safe for him to rely parte Morley, 21 W. R. 942, L. R. 8 Ch. 1026; Ex parte upon the judgment of Lord Justice Bramwell, above re- Dear, 24 W. R. 525, L. R. 1 Ch. D. 514). An absolute ferred tu, to the extent of supposing that he will not be transfer of assets free from any obligation as to the apliable to the creditors of the firm if he simply leaves plication of them is, however, common enough, not only matters in statu quo. If he on his own account enters in such a case as Re Simpson, where it was provided for into an express agreement with the firm that the capital by the articles of partnership, but in ordinary case of shall be continued as a loan to the firm upon certain dissolution as to one of several partners, who assigns all terms, and a portion of the profits be paid in respect of his interest in the assets to his co-partners in considerait, it could, having regard to recent authorities, scarcely tion of a covenant of indemnity against the debts of the be argued that there was any such relation between him firm. And it seems (see the observations of Lord Justice and the surviving partners as that they were to be re Mellish in Es parte Dear) that not only a partner himgarded as his agents for carrying on the business. But self, but his executors, have the power by such an absolute when he retains a continuing control over the capital, and transfer to continuing partners to put an end to the joint receives the profits earned by it, he might perhaps be estate with its consequent primary liability to joint debts, considered as allowing and adopting those acts and con. or, in other words, to withdraw it from the preferential tracts of the firm by means of which the capital is ap. claims of one set of persons—the creditors of the old plied in this way or that, and the profits are earned, and business—and to subject it to similar claims by 80 as having constituted the relation of principal and another set of persons-namely, the creditors of the agent between himself and the other parties; and until new business. Ex parte Butcher, In re Mellor the law is further elucidated executors will only be safe (28 W. R. 484, L. R. 12 Ch. D. 917, 13 Ch. D. if they act upon the supposition that such a course of | 465), is a decision to the effect that they cannot make conduct will render them liable.

such & transfer unless the will authorizes it. In It will be observed that we have referred to the that case three executors were empowered to con. position of executors under articles of partnership only; tinue the business, and it was held that two of their position under the will of their testator is not them could not be considered, by merely carrying material to the question of their personal liability, but, on the business themselves, to have made a transfer on the principles which we discussed in the former to themselves so as to convert the assets of the article, is a matter important-firstly, to themselves, old business into assets of the new, and thus defeat because upon it depends their right to indemnify them- the rights of the creditors of the former. The judgment selves for this liability out of the assets of their testator; is undoubtedly right, but the reasoning of Bacon, C.J., and, secondly, to their creditors, because in the event who referred to the impossibility of executors defeating of the executor's inability to meet his engagements, the the claims of the joint creditors by merely carrying on the creditors may be able themselves to obtain satisfaction business themselves, is perhaps simpler than the reasons out of the assets.

stated in the Court of Appeal, where the case was The position of the executors of a deceased partner decided with reference to the terms of the will. The under his will, however, may, it appears, also be con- terms of the will may be material in certain events, as sidered in another aspect, or was so considered in a we showed last week; but they are material as affecting recent case, which is not to be understood without the power of executors to subject the testator's property bearing clearly in mind the rules which govern the ad- to a fresh set of business creditors, and not as conferring ministration of partnership property. To begin with, on them a power to withdraw it from the primary claims although the joint creditors of persons trading in partner of the testator's own creditors. And if, as against ship are entitled to have the joint property of the creditors, the executor has, in the particular case of partnership applied in liquidation of their demands, partnership, such a right to dispose, virtute officii, of the before any part of it can be made available for the testator's interest in the Assets of the firm as was referred separate creditors, yet the joint creditors can scarcely to by Mellish, L.J., in Ec parte Dear, it is not necessary be said to have a specific right against it any more than for them to rely on any express authority in the will so the general creditors of a testator have a specific right to deal with them. Consequently the case of Ex parte against his assets. They can require such an applica- | Butcher cannot be considered as a very satisfactory con. tion of it as above indicated whilst it continues to be jointtribution to the law upon this subject. property, but they cannot prevent any disposition of it by the partners by virtue of which it will cease to be the Joint property of the original firm, and become the separate property of one of the partners or the joint property of

RECENT DECISIONS. some other firm, and such a disposition will preclude any claim by them to have it appropriated for their own

WINDING UP OF UNREGISTERED COMPANY. benefit, and will, of course, bar the ordinary right of the partner making it to rid himself of the liability

(Rudow v. Great Britain Mutual Life Assurance which he is under in respect of the debts incurred whilst

Company, C.A., 29 W. R. 585.) he was a member of the firm, by having the joint assets Section 204 of the Companies Act, 1862, expressly applied in liquidating them. If the partnership deed provides that the provisions made by this part of the provides, in effect, that the whole interest in the assets Act with respect to unregistered companies shall be suall pass to surviving or continuing partners, the power deemed to be made in addition to, and not in restriction thus conferred upon the latter entitles them to employ of, any provisions hereinbefore contained with respect to them as they please, free from the obligation of satisfy | winding up companies by the court.” This part of the ring the creditors to whom the deceased, or out-going, section clearly applies to the winding up of unregistered

partner, is liable (Re Simpson, 22 W. R. 697, L. R. 9 companies the provision of section 85 of the Act with "Ch. 572). But, inasmuch as on the determination of reference to the power of the court to grant an injunc

a partnership the ordinary right of each partner is totion to restrain further proceedings in any action, suit, We the assets applied in payment of the partnership | or proceeding against the company.

or proceeding against the company.

But section 204 debts, & provision in a partnership deed, whereby the proceeds to say that "an unregistered company shall assets are vested in surviving or continuing partners, not, except in the event of its being wound up, be will generally be taken to mean that they are to be so deemed to be a company under this Act, and then ested after the debts have been satisfied thereout, for only to the extent provided by this part of this Act."

Vice-Chancellor Bacon seems to have read this clause as year, upon presentation and delivery of coupons," meaning that the provisions as to winding up companies which were attached to the instrument, and each of by the court, including section 85, only applied to | which on its face was called a debenture, was numbered, unregistered companies as to which an order for | and stated the amount of interest and place at which it winding up had been actually made, and he refused to was to be paid. The question was whether this instru. apply section 85 to a company as to which a winding-up ment was to be stamped as a promissory note or as a depetition had been ordered to stand over. The Court of benture. The court held that it must be stamped as & Appeal held that section 85 applies equally to registered debenture. It is curious that there is no definition of a and unregistered companies.

“ debenture," and the court did not attempt to construct

one, but Grove, J., said that the “real distinction between ATTESTATION OF BILL OF SALE.

the instrument in question and a promissory note arises (Seal v. Claridge, C.A., 29 W. R. 598.)

from the special mode in which the interest is payable In this case a bill of sale was attested by a solicitor,

and the mode in which a limitation is placed on its pay

ment. Interest is to be paid only to the holder of the who was tbe grantee. The court held that the attesta

debenture—that is, to the holder of the debenture or to tion required by the Bills of Sale Act, 1878, is that of an independent solicitor. As we remarked some time ago,

anyone who is a bona fide holder of the documentwhen dealing with the question of whether the solicitor

and it is to be paid, not merely when it becomes due,

but as specially stated in the document, on the presenof the grantee could be the attesting solicitor, there is no authority directly in point, and the decision of the

tation and delivery of the coupons hereto annexed.' Court of Appeal rests on general considerations. The

There is nothing of that kind in a promissory note." It Lord Chancellor said it was“ inconsistent with the prin

is to be observed that Mr. Palmer, in his useful book on ciple and object of attestation that a party should attest

Company Precedents, at p. 252 (2nd ed.), suggests that an instrument for his own benefit. A real attestation

such a debenture “should be stamped as a promissory

note.” was emphatically intended and required by the Legislature." This, we think, must clearly be so. There is understood to be some judicial opinion in favour of the proposition that the attesting solicitor must not be the

REVIEWS. solicitor of the grantee, but we are not aware of any reported decision to that effect.

CHANCERY ACTIONS.

A CONCISE TREATISE ON THE PRACTICE AND PROCEDURE AMENDING BILL OF COSTS AFTER DELIVERY. I IN CHANCERY ACTIONS. By SYDNEY PEEL, Barrister. (In re Holroyde, M.R., 29 W. R. 599.)

at-Law. SECOND EDITION. Stevens & Sons. In re Heather, Son, al Gill (18 W. R. 1079, 34 Beav. Mr. Peel has removed a defect we pointed out in the 177), it was decided by the Court of Appeal in Chancery first edition of his work, by adding chapters on Appli that after a solicitor has delivered his bill of costs, and cations in Chambers, Proceedings in Chambers under it has been objected to, and certain items have been Judgment, and Further Consideration. No doubt this is specified as overcharges, the solicitor has no right to re to some extent a departure from his plan, which is to form his bill, and the client has a right to have the give only the Judicature Rules relating to chancery actions, original bill taxed. The present case was exactly on all with a summary of the cases decided upon them ; but fours with the previous decision, and only deserves notice we think the addition adds considerably to the value of for the observation of the Master of the Rolls that, “ If the book. The cases decided since the last edition have the solicitor had informed his client, at the same time as been added, and their effect is very concisely stated. he sent the bill, that there were charges in it unwarrapto | The book will give to the student a good general view of able in law, and payable or not entirely at his client's l the effect on chancery practice of the Judicature Acte option, the case might have been different.”

and Orders.

NOTICE OF INTENDED EXERCISE OF POWER

COMPANIES.
OF SALE.

A SUMMARY OF THE LAW OF COMPANIES. BY T. EUSTACE (Hoole v. Smith, Fry, J., 29 W. R. 601).

SMITH, Barrister-at-Law. SECOND EDITION. Stevens We should have thought it too clear for argument, & Haynes. that under the ordinary clause following the power of As a summary of the law (which is all it professes to sale in a mortgage, which provides that notice to pay off | be) this little book may be useful to the student, but it shall be given to the mortgagor, “his executors, adminis. would be more useful if it contained more detail, and trators, or assigns," notice must be given by the mort especially more practical information as to the formation gagee before he exercises his power to all subsequent of a company, and as to the memorandum and articles. mortgagees, they being clearly “ assigns" of the mort. Table A ought to be printed in full, and all the ordinary gagor. In this case, however, it was contended that I additional or substituted clauses in articles might easily “assigos" applies to a case where the mortgagor's prop- l be given in italics or smaller type. Some such outline of erty bas been sub-divided, not where the mortgagor | the general provisions of articles is much needed. remains owner of the whole, and that notice to the mortgagor alone was sufficient. Mr. Justice Fry held that there must either be notice to the mortgagor and

ARTISTIC COPYRIGHT. bis assigns, or at least notice to the assigns.

THE LAW OF ARTISTIC COPYRIGHT. By MARTIN ROUTH

Barrister-at-Law. Remington & Co.

This is a novelty in legal literature. A considerable part STAMP ON DEBENTURE FRAMED AS A PRO. I of the book is couched in the form of dialogue. Tous MISSORY NOTE.

on the subject of copyright in photographs—as to which (British India Steam Navigation Company V. Com our readers may remember we had a lively controversy missioners of Inland Revenue, Q.B.D., 29 W. R. 610.)

W. R. 610.) | some time ago with the present Mr. Justice Watkin In this case a company issued debentures, not under | Williams-we have a dialogue commencing thus:-seal, framed as promissory notes, in the ordinary form, stating that the company will pay $100, the amount of

SCENE,- Photographic Studio.-Ender a gentleman (M.). this debenture, to A. or order at ” a specified place," and

M. : I see that you have my portrait in your window

labelled “Copyright.” the company will also pay to the holder of this debenture PHOTOGRAPHER : May I ask your name? interest at the rate of five per cent. per annum on the! M. : Lord HBaid sum of £100, by equal half-yearly payments in each | P. : Certainly, I bave your portrait exhibited for sale

·singly, and in a group combined with the portraits of your | Justice is himself so worthy and high an ornament, his fellow Cabinet Ministers. Have you any objection ? lordship would take the trouble to inquire of, say, the M. : I wish, rather, to ascertain whether I have any right

merest tyro at common law, used to the taxation of our to object. What is the law in relation to photographic

costs, he would be told that, in these days of railway copyright?

communication, a cause is tried at much less expense at P.: The law places photographs on a par with paintings

the assizes, & few miles from and drawings ; but curious difficulties arise in interpreting

town, than in London and applying the law, owing to the inherent difference which

itself; and that the enormously” increased expense exists between the two. ...

his lordship speaks of is only the creation of a fertile M.: I understand, then, that whenever paintings and draw.

imagination. I have always understood that the tenings are mentioned in the previous dialogues the conversa.

dency of legislation, from the time of Lord Brougham tion would equally apply to photographs ?

downwards, has been to make the administration of justice P.: That is so. But you must regard the negative of cheap, speedy, sure, and “above all things cheap," as the photograph, and not the photograph itself, as that the present Lord Chief Justice not long ago took occasion wbich corresponds to the painting. Look, if you please, publicly to promise it would be. I can imagine what to this copy of the first section of the Fine Arts Act, 1862. Lord Justice Bramwell would say to a solicitor charged 6. The author of every original photograph shall have the

with negligence in not trying his clients' cause as sole and exclusive right of copying, engraving, reproducing, speedily as possible, and thereby causing the “enorand multiplying such photograph, and the negative

mously" increased expense of the often-repeated item thereof, by any means and of any size, for the term of the

in the bill of costs, "attending court all day, cause in aatural life of such author, and seven years after his death."

paper, but not reached,” in addition to the risk of M. : Then the copyright to start with is in the photo

losing the fruits of the verdict, which too frequently grapher

occurs by delay. P. : Yes, but the effect of the rest of the section which

In conclusion, I would merely express my wish that follows is, ihat, upon the first sale of the negative, the copy some more able pen than mine had drawn attention to right must be preserved by an agreement in writing, signed this subject, which certainly requires ventilation; and, either by the vendor or purchaser of the negative, giving the with the greatest submission to the learned Lord Justice, copyright to the other party, otherwise it is irredeemably I would ask whether he considers it consistent with his lost; except in cases where the negative is made on behalf of well-known love of fair play to so unwarrantably. any other person for a good or valuable consideration, in

encourage the idea the majority of the lay public hold, which case the copyright, if no agreement is made, vests in that all lawyers, whether barristers or solicitors, are the sitter or commissioner.

“ concerned" only for the quick and rich harvest ? ) This is the view which our learned correspondent

A SUBSCRIBER TO YOUR JOURNAL FROM impugned, contending that the copyright in photo

ITS COMMENCEMENT. graphic portraits does not, in any case, belong to the Bedford-row, August 3. sitter unless the sitter expressly stipulates for the pur. chase of the negative. We think, however, that the arguments the other way are conclusive. The statements

DORMANT FUNDS IN CHANCERY. of law in the book appear to be accurate, and they are [To the Editor of the Solicitors' Journal.) couched in untechnical language, so as to meet the re

Sir,- On the 2nd inst. you drew attention to the crude quirements of the artists, publishers, and photographers

form in which the list of dormant funds was issued, and for whose use it appears to be mainly intended.

Mr. Stanley Leighton has since then drawn attention to the matter in the House of Commons, but has failed to extract a promise that any improvement shall be made

in future lists. CORRESPONDENCE.

It is difficult for the outside public to understand why information spontaneously afforded by one department

of the State should be refused by another. For instance, “LONDON CASES AT COUNTRY ASSIZES.”

a notice concerning unclaimed funds in the hands of [To the Editor of the Solicitors' Journal.] the Administrators-General, issued by order of the Sir,-I have read the report of Lord Justice Bramwell's

Secretary of State for Indiu, shows (1) date of remitobservations in your paper of the 23rd ult., under this

tance; (2) name of presidency; (3) name of estate ; (4) to heading, and think it high time that some notice should

whom payable; and (5) amount. A notice of this sort be taken of such uncalled-for remarks. Like many

commends itself to business men, and one would supothers of his brethren on the bench, the learned Lord

pose that the chancery officials would, for their own Justice is very fond of attacking the members of the

comfort, voluntarily issue the lists of dormant funds in “ lower branch of the profession." I wish to ask, through such a form

such & form that persous supposing themselves to be the medium of your journal, whether the charges this

interested might see at a glance if they were so interlearned judge 80 often indulges in, at the expense of ested, and to, was

ested, and to what extent. If this were done, the those who are really in a manner, defenceless, can be

nner defenceless, can be officials would not be pestered with inquiries from considered manly or dignified, even assuming the slight- | fanciful claimants. est ground to exist for the soft impeachment" What of the great value of publicity in such matters I the “certain smart lawyer" was guilty of to bring could cite many precedents; but the case of the Thames -down upon his unfortunate head such a rebuke from the

Tunnel Company may suffice. In the course of the bench, without the privilege of a reply, I am at a loss to winding up of that company, a large sum in the shape understand. As an old practitioner, well versed in the

of surplus assets awaited distribution. Accordingly, trial of causes in London and at the assizes, it appears

advertisements were inserted in the leading newspapers to me that the plaintiff's solicitor in the action in

thus :question very properly advised his client to have his cause disposed of as expeditiously as possible, and the Names of Share- Last known and registered Proportion of Sur

holders.

Place of Abode. learned Lord Justice ought to know that, although the

plus Moneys due. solicitor might“ get his harvest quicker," it would not be so rich as it would have been if delayed, even should Pattalo, William. Sun Court, Cornhill. £630 105. 8d. the apprehension be realized that the parties might be “silly enough to come to an amicable arrangement."

The result was highly satisfactory : every person, save If, before making these attacks, which can do no good, two, made gocd his or her claim. EDWARD PRESTON. but are calculated to cause much mischief, by bring. 1, Great College-street, Westminster, ing into odium the profession of which the Lord

July 30.

tered

« PreviousContinue »