Page images
PDF
EPUB

AN IMPORTANT CONVENIENCE TO LAW WRITERS AND

SOLICITORS.

THURGOOD & CO., Estate and Land Agent,

1 Surveyors and Auctioneers. Lonsdale Obambers, 27, Chancery. lane, W.0., hold PERIODICAL SALES of Property, at the MART, the Second Tuesday in each month. Railway, School Board, Corporation, Board of Works, and other Compensations conducted. Valuations for Probate, Mortgages, &c. Estates managed.

A scale of charges upon application.

STEPHENS SCARLET INK FOR STEEL PENS.

Colour it ich scarlet upon parcamen... 39; and ind is.eaca

MESSRS. DEBENHAM, TEWSON, FARMER, &

1 BRIDGEWATER'S LIST of ESTATES and HOUSES to be SOLD or LET, incinding Landeu Estates, Town and Country Rosid. ences, Hunting and shooting Quarters, Farm, Ground Rents, Rent Charges, House Property and Investments ponerally, is publinhad on the first day of each month, and may be obtained free of charge, at their omces, 80, Cheapride, E.C., or will be sent by post in return for two stamps,- Particulars for insertion should be received not ster than four days previous to the end of the preceding month.

This new Ink supplies the demand continually made but never before met, for a Red Ink which is uninjured by Steel or other Metallio Pens. Steel Pens lett in this ink for months do not impair the beauty of its colour, nor are the Pens in the least corroded by it. The existing Rod Inko rapidly destroy Steel Peps, and lose their red colour it used with other than Gold or Quill Pens. This new colour is a very rich scarlet red of great beauty. The colour of this ink in not affected by use upon parchment, and is consequently of great value to Solicitors and Draughtemen.

Sold in stone bottles, retail at ls., 2., 89: and Imperial Quarts of 40 ounces et 66. each. Also in glass bottles at 6d. and ls.oach,

SOLD BY ALL STATIONERS.

PARTRIDGE AND COOPER,

LAW AND GENERAL STATIONERS, 1 & 2, CHANCERY LANE, LONDON, E.C.

OTICE.-FAMILY PLATE, DIAMONDS, and

JEWELLERY purchased or sold by JOHNSON, WALKER, & TOLHURST, Diamond Merchants, Goldsmiths, Silversmiths, and Watch

Manufacturers, 80, ALDERSGATE STREET, E.C. GOLD and SILVER purchased by Assay. Valuations made.

Law Copying and Engrossing.

The Companies Acts, 1862 to 1880.

Every requisite onder the above Acts supplied on the shortest notice

The BOOKS and FORMS kept in stock for immediate use MEMORANDA and ARTICLES OF ASSOCIATION apeedily printed n the proper form for registration and distribution, 'SHARE CERTIFICATES, DEPENTURES. &c. engraved and printed. OFFICIAL BEALS designed and executed.

Deeds and Writings engrossed and copied on the Premisas, with
punotnality and dispatch, at the lowest scale of charges.
A good Discount allowed on agreed accounts.

LAW PRINTING,
TATEMENTS OF CLAIM AND DEFENCE, AFFIDAVITA, and

other PLEADING, Printod at 18. per folio.
DEEDS, CONVEYANCES, MORTGAGES, &o., Printod in forma

for Registration.
Discount allowed for cash on agreed acoounta.

LITHOGRAPHY,
ABSTRACTS, BRIEFS, PETITIONS, DRAFTS, MINUTES OF

EVIDENCE, Lithographed at rednced prioes.
PLANS OF ESTATES, SPECIFICATIONS, BUILDING
SOCIETIES' DEEDS, LEASES, &c., Lithographed with acouracy
and dispatoh,
PARCHMENT AND LEGAL PAPERS.

Samples and Catalogues sent post-froe.

Solicitors' Account Books.

RICHARD FLINT & CO.

Stationers, Printers, Engravers, Registration Agents, &c., VATES, ALEXANDER, & SHEPHEARD, General 49 FLEET-STREET, LONDON, E.C. (corner of Serjeants' I Printers, Lonsdale Buildings, 27, Chancery-lano, immedi. inn).

ately opposite the Chancery-lane Post-office. Annual and other Peturns Stamped and Filod

| AW, Parliamentary, and General Printing by

u Yatos, Alexander, & Shepheard, 27, Chancery-lane. KINAHAN'S LL WHISKY.

AUCTIONEERS' Work, Particulars and Conditions

A of Sale, Posters, &o., printed by Yates, Alexander, & TXINAHAN'S LL WHISKY. Pure, Mild and Shepheard. Mellow, Delicious and most Wholesome. Universally recom

DAMPHLETS, Books, Newspapers, Circulars, Rules mended by the Profession. The Cream of Old Irish Whiskies

and Regulations of Societies printed by Yates, Alexander, & IZ INAHAN'S LL WHISKY. Dr. Hassall says

Shepheard. “ Soft and Mellow, Pure, well Matured, and of very excellent

DROSPEOTUSES of Public Companies, Memoquality."

randa and Articles of Association, Shara Certificates, Receipts INAHAN'S LL WHISKY. Gold Medal, Paris

Notices, &c., printed by Yates, Alexander, & Shepheard, 27, Chaz.

cery-lane.
Exhibition, 1878; Dublin Exhibition, 1865, the Gold Medal.
20, Great Titchfield-street, London, w.

DISCOUNT for Cash allowed by Yates, Alexander, &

D Shepheard, Lonsdale Buildings, 27, Chancery-lane. BRAND AND CO'S OWN SAUCE.

STATEMENTS of Olaim and Defence, Affidavite,

D Petitions, and Pleadings printed by Yates, Alexander, & SOUPS, PRESERVED PROVISIONS,

Shepheard. POTTED MEATS and YORK and GAME PIES, DINNEFORD'S MAGNESIA,

also ESSENCE OF BEEF, BEEF TEA, The Medical Profossion for over Forty Years have approved of this are

solution as the best remedy for

ACIDITY of the STOMACH, HEARTBURN, HEADACHE, GOUT TURTLE SOUP, and JELLY, and other

and INDIGESTION,

And as the safest Aperient for Delicate Constitutions, Ladies SPECIALITIES for INVALIDS.

Children, and Infants,

DINNEFORD'S MAGNESIA.
CAUTION :-BEWARE OF IMITATIONS.
Sole Address,

MADAME TUSSAUD'S EXHIBITION, 11, LITTLE STANHOPE STREET MAYFAIR, W.

BAKER-STREET.-On view, Portrait Models of KING ALFONSO XII. and VICTOR EMMANUEL, the Duke and Duches

of EDINBURGH, the PRESIDENT of the UNITED STATES MLASGOW and the HIGHLANDS.-Royal Route

GENERAL GARFIELD. The lying in State of the late Emperor of via ('rinan and Caledonian Canals, by Royal Mail Steamer Russia. The Boudoir Group of Fashion, containing the newest and COLUMBA (TIONA, from Glasgow daily at 7 a.m., and from most costly costumes, with other Court Dresses. The Baryti Greenock at 9 a.m., convering passengers for Oban, North and Burdett-Coutts, Mr. Parnell, &c. The complete line of British West Highlands. Oncial Guide Book, d., illustrated copies, 60, Monarchs, from William the Conqueror to Queen Victoria : and over and ls, by post, or at Euston, St. Pancras, King's Cross Railway | 300 Portrait Models of Celebrated and Distinguished Characters Bookstalls, London. Bill, with map and tourist fares, free by post Admission, ls. Children under twelve, 6d. Extra room, 6. Oprea from the owner, DAVID MacBRAYNE, 119, Hope-strect, Glasgow,

from 10 a.m, till 10 p.m.

862

802

0022

863

greatly exercising the revising barristers. At Blackburn LONDON, SEPTEMBER 24, 1881. it appears that & claim was made by the occupant of a

bedroom, who had the joint use of another room in the

house; but the revising barrister decided that a bed. CONTENTS.

room separately occupied for sleeping purposes only was not a dwelling within the Act, a decision which seems to

be unguestionably correct. More difficulty has arisen CURRENT TOPICS .. THE PRACTICAL EFFECT OF TIE CONVEYANCING BILL .....

as to other cases which have been nearer the line, but RECENT REGISTRATION DECISIONS..............................

the tests applied have generally been those we indicated LEGISLATION OF THE YEAR .......... CORRESPONDENCE

the .........................

last week-viz., whether the landlord resides in CASES OF TIE WEEK

house, whether the furniture belongs to him, and In re Belgravian Ice Company (Limited) ................

whether be provides the attendance. If these facts are In re A Solicitor .... Ruston v. Tobin ...

862 ascertained, the exercise of a little common sense will Holmes Marine Life Protection Association (Limited)

usually enable the revising barrister to draw the line of Pilley........ Pronger v. Freeman ......

863

distinction between the lodger and the householder in SOCIETIES ....

863 respect of part of a house. LAW STUDENTS' JOURNAL........

803 OBITUARY ..........

863 LEGAL APPOINTMENTS ....

864 COMPANIES ..........................................

.................. 8044 A DECISION of the Court of Appeal in Crawcour v. CREDITORS' CLAIMS..........

801

Salter, not yet reported fully, but given in this journal LEGAL NEWS ................

865 LONDON GAZETTES, &c., &c......

865 in Cases of the Week (ante, p. 525), deserves the attenPUBLIC GENERAL STATUTES,

tion of our readers. In Ex parte Powell, In re Matthews

| (L. R. 1 Ch. D. 501), a furniture dealer who had let CURRENT TOPICS.

furniture to an hotel keeper, who afterwards became bankrupt, claimed the furniture as against the trustee in the bankruptcy, alleging that there was a well-known

custom of letting furniture to hotel-keepers, so that it WE ARE INFORMED that the resignation of Lord Justice

was not in the order or disposition of the bankrupt. The BRAMWELL has been completed.

Chief Judge said that “the custom was universal in this country," and that the custom had been proved so

frequently in the bankruptcy courts that the court ought THE LINGERING DEATH of the deeply lamented President to take judicial notice of it. But the Court of Appeal of the United States suggests an alteration of our own declined to do this, and, holding that the evidence criminal law. Until the passing of the Criminal Law

adduced in the particular case did not establish that the Consolidation Act, 1861, an attempt to murder was

custom had existed so long, and had been so extensively punishable with death equally with murder, although the

acted upon, that the ordinary creditors of the debtor victim of the attempt might not die within the year and in his trade might be reasonably presumed to have known a day, death.within which constitutes the crime of murder

it, offered the trustee to direct an issue respecting the at common law. In 1861 this was altered, and the

existence of the custom to be tried by a jury, but the attempt to murder is, by section 11 of 24 & 25 Vict.c. 100, trustee declined this offer. In Crawcour v. Salter, the punishable by penal servitude for life only. The modern

| Court of Appeal, affirming a decision of MALINS, V.C., resources of medical science prolong life so much that held that the custom of letting furniture on hire is now it is not difficult to imagine a case where a murdered

so notorious that the court is bound to take judicial man may survive beyond the year and day of grace which notice of it, and that no one, especially an hotel-keeper, the law allows to the murderer. It seems therefore that can now gain false credit from the fact that he is in for once our criminal law may well be altered in the

possession of furniture. The growing practice of selling direction of severity.

furniture upon so-called “hiring agreements" renders this decision of considerable importance.

IT MAY BE SOME CONSOLATION to the reverend gentleman whose adventures have recently excited so much AN ACCOUNT recently issued, in accordance with the public interest to know that the law has not been 38 & 39 Vict. c. 77, s. 28, shows the receipts and exunmindful of his case. Kidnapping—that is, “stealing penditure of the High Court of Justice and the Court and carrying away or secreting any person”-is an of Appeal for the year ending the 31st of March, 1881. offence at common law punishable by fine or imprison. Beginning with the Chancery Division the account ment (1 East, P. C., p. 429). It was formerly also shows the amount of dividends which wonld have arisen punishable by the pillory. A curious old Act (43 Eliz. from stock transferred to the National Debt Commisc. 13), which was in force till 1827, rendered punishable sioners under the provisions of the Courts of Justice with death any one who should, “ without good and law. (Salaries and Funds) Act, 1869, and from the stock pur. ful authority, take any of the Queen's subjects chased with cash so transferred, if such stock had not against his or their will out of Cumberland, Northum. | been cancelled," to be £104,275 9s. 11d. The amount berland, Westmoreland, and the Bishopric of Durham, of brokerage on the sale and transfer of stock was or to any other place within any of the said counties, or $12,206 12s. 30.; the fees of taxation amounted to detain, force, or imprison him or them as prisoners or $16,651 98.; the lunacy percentages to £11,311 10s., and against his or their wills, to ransom them or otherwise."

the percentages under windings up to £25 18. 8d. In addition to this the amount received for stamps iu lieu

of fees was £78,493 4s. 20., thus mnking the total THE QUESTION we discussed last week, of the right of receipts of the Chancery Division £222,963 78., which is persons who occupy parts of houses separately as a decrease of £6,179 17s. from the receipts of the pro. dwellings to be put on the borough register, has been / vious year. Against these receipts we find the following payments—viz., for salaries of judges (including £6,000 for the Lord Chancellor), £62,784 93. 8d.; THE PRACTICAL EFFECT OF for retiring annuities of judges, £13,500 ; for com. pensations, less the amount of certain abolished offices,

THE CONVEYANCING BILL. £343 12s. 9d.; for salaries, £156,305 4s. 2d.; for scriven.

I.--As to CONSOLIDATION OF MORTGAGES. ery and printing, £4,679 2s. 10d.; for other expenses, £4,769 Os. 1d.; for

The provisions of Lord Cairns' important measure were pensions, &c., of officers, £31,355 9s. 2d.; for repairs, rents, rates, taxes, &c.,

fully discussed in these columns during the passing of £5,191 16s. 3d., and for stationery, £8,694; making a total

the Bill through Parliament, but it may be useful por of £287,622 14s. 11d. of expenditure, which is a net

to attempt to point out what changes the Act will make decrease of £18,527 4s. on that of the previous year.

in law and practice, and especially to define the extent In the Queen's Bench Division the only item of receipts

of the operation of some of the provisions which may be is the amount of stamps in lieu of fees, £116,415 4s. 9d.,

apt to mislead the reader by their apparent generality. being an increase of £29,373 13s. 5d. Against this item

Among the legislative changes which are effected or

aimed at by the Act, none appears to be more likely to appear salaries (including £3,457 138.7d. for remuneration to special commissioners and their staff on circuits),

be received with favourable anticipations than the £167,142 1s. 20.; incidental and travelling expenses,

17th section, which imposes what the marginal £6,770 Os. 7d. ; stationery, &c., £2,101 ; rent, taxes,

note styles a " restriction " upon the consolidation of repairs, &c., £1,149 163, 3d.; and compensations and

mortgages. We own that, even in its fairest and least

exceptionable shape-where, that is to say, the right to superannuation allowances, £32,602 3s. 100., making a total expenditure of £209,765 1s. 100., or an increase of

consolidate was exercised as agair.st the mortgagor him£7,550 8s. 5d. on that of the previous year.

self-the doctrine of consolidation has always appeared to

In the Probate, Divorce, and Admiralty Division the stamps

us to involve a doubtful equity. We do not indeed and fees received amounted to a total of £153,379 16s. 98.,

doubt that the course of conduct which it prescribed to

the mortgagor was morally just and reasonable ; but we being a net decrease of £10,079 Os. ld. On the other side of this account we have the payment of salaries for

doubt whether it is for the public advantage that the probate and divorce, £88,956 14s. 80., and for admiralty,

courts-even courts of equity-should have attempted to £15,586 88. 10d.; incidental and travelling expenses,

carry so far their jurisciction to enforce the morality of £8,242 188. 10d. and £176 2s.; for stationery, postage,

generosity rather than the strict bargain between the &c., £5,250 and £176; for rents, taxes, repairs, &c.,

parties. This doubt gathers strength at the present day £9,423 ls. 10d. and £943 198. 3d.; and for compensa

from the almost complete abolition of that distinction tions and superannuations, £58,410 18s. 10d. and

between law and equity upon which the doctrine was £282 11s. 1d., making an aggregate of receipts amount.

founded. One practical result of that abolition has been ing to £187,448 15s. 4d., or £4,315 19s, less than in the

to make the mortgagor's right to redeem a mortgage as previous year. The total receipts in the district registries

much a legal right, both in legal theory and in the of Liverpool and Manchester were £8,816 6s. 8d., and

current popular sentiment, as any other legal right; and the payments £6,309 6s. ld. Thus it appears that in

this tends greatly to weaken the popular recognition of the all the divisions of the High Court, including the

grounds of the equitable theory, that the mortgagor was two district registries specified, the receipts were

not claiming a right, but asking a favour, to be granted £501,574 15s. 2d., and the expenditure £691,145 18s. 2d.

only upon certain terms. The increase in the total receipts was £11,696 3s. 8d.,

But if we doubt the propriety of enforcing the doeand the decrease in the expenditure was £13,943 6s. 4d. ;

trine, at least any longer, even against the mortgagor, but notwithstanding this, the total excess of expenditure

we can have no doubt that the much greater lengths to over receipt is £189,571 3s., which according to the

which it has been carried against persons claiming under showing of this account the country pays for the ad

or through the mortgagor are a very proper subject for ministration of civil justice.

legislative reform. Some of these applications of the doctrine could not be said to work anything less than

manifest injustice, of which, perhaps, the worst was THE ACCOUNT of receipts and payments of the Court of caused by the refusal of equity (in its nervous anxiety Bankruptcy for the year ending March 31, 1881, pre. | to prevent evasion) to treat absence of notice in an pared pursuant to the Act 32 & 33 Vict. c. 19, 88. 24 assignee as a bar to consolidation against him. It con28, shows the amount of receipts to be £116,849 133., sequently became, as Vice-Chancellor Wood said in which is a net decrease from the previous year Beevor v. Luck (L. R. 4 Eq. 537, at p. 549), a "very of £18,874 118. 6d. The expenditure includes | dangerous thing at any time to buy equities of redemp£33,635 18s. 1d. for salaries ; £42,511 3s. 8d. for remu. tion, or to deal with them at all." neration to county court registrars in respect of bank | Holding these views, we are disposed to receive ruptcy business; £15,553 45. ld. for incidental and favourably any judicious legislative dealing with contravelling expenses ; £997 78. 6d. for rent, rates, taxes, solidation. We confess to have suffered some dis. &c. ; £373 for stationery and postage; and £29,166 98. | appointment at the way in which Lord Cairns has dealt for pensions and compensations. These figures, which with it, and the grounds of this disappointment we pro. show a net decrease in expenditure of £7,697 12s. 2d., pose now to explain. also show an excess of £5,387 9s. 4d. of expenditure For this purpose it will be necessary to cite a part of over receipts. A considerably stronger instance of this the section in which the subject is treated : excess is afforded by the fees received at the Office of Land Registry, which only amounted to £969 10s. 6d.,

"17. (1) A mortgagor seeking to redeem any one mort.

gage, eball, by virtue of this Act, be entitled to do so, while the expenditure came to £6,154 18. 9d.

without paying any money due under any separate morto gage made by bim, or by any person through whom be

claims, on property other than that comprised in the An American journal gives the following conversation mortgage which he seeks to redeem. between counsel and jadge:-“I objeot, your bonoar, to “(2) Tbis sectiou applies only if and as far as a contrary this witness' testimony." “Upon what ground ?" said the intention is not expressed in the mortgage deede, or one of jadge. “My point is, your honour, that evidence from a | them. person occopying the professional position of the witness “(3) This section applies only where the mortgages, or is unreliable.” “What did I understand the witness to one of them, are or is made after the commencement of say his occupation was?” asked the judge. “ Washington this Act.” correspondent of a New York daily paper," was the reply. “ Ah !” said the judge, “the point is well taken ; the Against interpretation clauses, when they seek to court sustains your objection.”

go beyond the province of mere definition, we entertain

this objection, that they cannot at their best be anything | although the estate of the latter was insolvent, and the better than successful devices of laziness, while they are result was to injure the general creditors. In In re much more likely to take effect as traps for the unwary. General Providence Assurance Company (L. R. 14 Eq. In the present case we do not think that anything has 507), this principle was so extended by Vice-Chancellor been gained by giving an emphatic prominence to the Malins as to apply against the liquidator of an insolvent abolition of consolidation in its least exceptionable company. It is true that the present Master of the shape, while the provision is left to be extended to per Rolls has strongly expressed his disapproval of these sons claiming through the mortgago: ty the operation cases, and of Spalding v. Thompson (26 Beav. 637), the of an interpretation clause. This, which to our minds original decision of Lord Romilly from which they is a blemish, is emphasised by the crudeness of construc sprang: see Talbot v. Frere (L. R. 9 Ch. D. 568, at p. tion which, having in the first line relied upon the | 571). But until they have been reviewed by the Court interpretation clause, in the fourth line makes specific of Appeal they cannot be cast aside as overruled. mention of persons claiming through the mortgagor. It is impossible to see in what way the section of the But we should not think these criticisms worth urging Act which we are considering touches these last-menif they stood alone. The section exhibits other unfore tioned anomalies and enormities; or rather it evidently seen defects, or intended omissions, which, in our leaves them untouched. The interpretation clause informe opinion, are fatal to its claim to deal finally, or in a well us that property, unless what it calls a "contrary intenconsidered manner, with the subject.

tion" appears, includes real and personal property, and The reader is aware that another mortgage was the reforms which we desire might have been thoroughly not, as against certain persons, the only thing which effected in a few lines. If the omission to effect them is could be consolidated with a mortgage. As against the due to inadvertence, we think that the section has been heir (or devisee) of the mortgagor, a bond debt of the very carelessly drafted; if it is due to design, we think mortgagor could be consolidated with the mortgage; that the section was very ill conceived. that is to say, in the language of the report of Shuttleworth v. Laycock (1 Verp. 245) (where the rule was first laid down by Lord Keeper North), if there is a debt secured by mortgage, and also a bond debt, when RECENT REGISTRATION the heir of the mortgagor comes to redeem, he shall not redeem the mortgage without paying the bond debt

DECISIONS. too, in case the heir be bound. This is explained and The Parliamentary and Municipal Registration Act, confirmed by Lord Hardwicke in Morret v. Paske (2

1878 (41 & 42 Vict. c. 46), by setting on foot a simulAtk. 52, at p. 53) as follows:- Where a prior incum

taneous revision of the parliamentary and municipal list in brancer, by mortgage, &c., has a bond likewise from

the numerous cases “where (section 15) the whole or part . the mortgagor, the latter, in his lifetime, may redeem

of the area of a municipal borough is co-extensive with, the mortgage without paying off the bond debt; other.

or included in, the area of a parliamentary borough,” wise as to the heir-at-law, because the moment he

has greatly increased the business of reyising barristers' redeems the estate, it shall be assets in his hands;

courts. The evening sittings of the revision courts, and for this reason the court compels him to dis.

which are made compulsory by the Revising Barristers charge the bond as well as the mortgage. This

Act, 1873 (36 & 37 Vict. c. 70), s. 4, upon “ every distinction between the mortgagor and the heir of

barrister appointed to revise the lists for a parliamentary the mortgagor seems now to be clearly settled. It is a

| borough containing, according to the last census for the fine example of the prudery of equity; which might,

time being, more than ten thousand inhabitants," have with even better pretence to justice, and without any

no doubt become even more frequent than before. But straining of principle visible to the naked eye, have refused

notwithstanding the increased facilities for appeal given leave to the mortgagor (who was in justice bound at

by the 37th section of the Act of 1878, by which, “if least as much as his heir, whether named or not, to dis

any person feels aggrieved by a revising barrister charge his bond debts) to oust the mortgagee from his

refusing to stato a case, he may apply to the High legal advantage by redeeming a mortgage, except upon Court for a rule calling on the revising barrister, and the terms of also discharging bond debts (or even

also on the person, if any, in whose favour the decision simple contract debts), due from him to the mort

from which the applicant desires to appeal was given, gagee. This was actually done by Lord Keeper North

to show cause why a rule should not be made directing in Baxter V. Manning (1 Vern. 244), before the

the appeal to be entertained, and the case to be stated," Statute of Fraudulent Devises; but the weight of

and notwithstanding the many difficulties of construction authority, though consisting chiefly of dicta, is deci.

which the Act of 1878 presents, we cannot say that the dedly against that case. (See Challis v. Casborn, Prec.

number of what are called “registration cases" have Cha. 407; Anon., 2 Ves. Sen. 662; Coleman v. Winch, 1

increased to any considerable degree. The Act of 1878 did P. Wms. 775; Archer v. Snatt, 2 Stra. 1107; Elvy v.

not come into operation until the 1st of February, 1879, Vorwood, 5 De G. & Sm.540). The supposed ground of so that only one “set” of these cases has yet been heard, the distinction is neatly expressed in the somewhat

and we are somewhat surprised to find that the pedantic observation of Lord Macclesfield in Coleman v.

total number of registration cases amounted, in NoWinch: “ The bond of the ancestor, wherein the heir is

vember, 1879, to eight, and in November, 1880, to two. bound, becomes upon the ancestor's death the heir's own

We propose to examine the more important of these debt, for which he is suable in debet and detinet."

cases, taking those under Acts other than the Act of But the ancestor was of course equally liable to be sued,

1878 first, and those under the Act of 1878 afterwards. and the peculiar forms of the requisite common law action

| Ford, Appellant ; Drew, Respondent (28 W. R. 137, could have no possible bearing upon the equity of the L. R. 5 0. P. D. 59), from its interest to articled clerks, claim.

is probably familiar by name to many of our readers. Hitherto we have been speaking of mortgages of It was decided, upon the construction of section 31 of real estate. As against the executor, in the case of the Reform Act, 1832 (2 & 3 Will. 4, c. 45). That sec. mortgages of chattels, the prizciple has been carried tion, which makes provision for freeholders voting for a much further; far enough, in short, to give rise to a city, being a county for itself, enacts that no freeholder crying iniquity. In In re Haslefoot's Estate (L. R. 13 shall be registered in any year, “unless he shall have Eq. 327), Lord Romilly, following a previous decision of resided for six calendar months next previous to the his own, allowed a simple contract debt (we purposely last day of July in such year within such city, or omit to consider the effect, in this connection, of the 32 within seven statute miles thereof." During part of the & 33 Vict. c. 46) to be consolidated with a mortgage of prescribed period of six months, an articled clerk (who leaseholds as against the executor of tho mortgagor, was a freeholder) who had, throughout the whole of the

period, a bed-room kept for his exclusive use in his | This correcting power is derived from the following father's house in the city of Exeter, was absent serving initial paragraphs of section 28 of the Act of 1878:under articles to a solicitor in London. The revising

“A revising barrister shall .... perform the daties barrister held that there had been a suicient residence, and have the powers following: but the court, Grove and Lindley, JJ., on appeal, re 1 " (1.) He shall correct any mistake which is proved to him versed the decision. It is plain, from the judgment of to have been inade in any list. Grove, J., that that learned judge was not free from "(2.) He may correct any mistake which is proved to him doubt, but that the doubt arose " more from expressions to have been made in any claim or notice of objection." used in the cases upon the Act," in which it was

In James' case, an objector to a parliamentary vote, difficult " to draw the line between actual and con

following the old form under 6 Vict. c. 18, described structive residence," than upon his own construction of

himself merely “ as on the list of voters for the the Act." "If I had been asked," he observed, "to

parish" in which he resided. Form (I.) in the disregard the decisions, and say whether the articled

schedule to the Act of 1878 provides for the signa. clerk resided in Exeter during the period in question, I

ture of an objector describing himself as on the should have said, without hesitation, No.” The reason of

list of parliamentary voters. This is, of course, the decision was that the clerk could not return to

necessary for the purposes of identification in the cases Exeter without the consent of the solicitor, and this

where the parliamentary and municipal lists are revised reason should be noted as a guide for future cases

together. It was argued strenuously for the voter obwhere a “break" of residence is attempted to be set

jected to that the actual omission of the word " parliaup.

mentary” could not be said to be a " mistake," and the The decision in Foster, Appellant ; Medwin, Re

revising barrister not only held the omission fatal, but spondent (28 W. R. 660, L. R. 5 0. P. D. 87), that a

was of opinion that he had no power to amend. The right to vote in respect of a qualification within an

court, however, was clearly of opinion that he had. In isolated part of a parish for a borough comprising that

nat | Pickard's case, a lodger, claiming for the first part is not affected by an order made under the Divided

time, omitted to state both the amount of his rent Parishes and Poor Law Amendment Act, 1876 (39 & 40

and the address of his landlord, thus neglecting Vict. c. 61), which amalgamates the isolated part with a

| to fill up correctly two out of the five columns parish beyond the limits of such borough, is remarkable

borough, is remarkable tabulated in Form (H.), No. 2 in the schedule to the as showing that the High Court deliberately leans in

Act. The revising barrister, although evidence was given favour of the franchise in case of doubt. The question

satisfactory to him both of the amount of rent paid and turned upon the construction of a section (4) of the Act

of the address of the landlord, declined to correct the of 1876, which Lord Coleridge “ did not profess to under

omissions as mistakes, and the claimant lost his vote. • stand," but he "thought it his duty to interpret the Act,

| When the case which was stated came on to be argued, no if possible, so as not to affect the parliamentary fran

counsel appeared for the respondent. The case mani. chise," and did not hesitate to hold to the governing

festly affecting the whole lodger franchise, the court principle "that the court was not to affect the par

directed it to be re-argued by or on behalf of the liamentary franchise, if possible." We cannot call to

Attorney-General, and eventually affirmed the decision mind any case in which this rule has been so explicitly

explicitly of the revising barrister, holding that the mistake was laid down before, but we believe that it is the general

in a claim, not in a list, and that therefore the matter practice of revising barristers to lean in favour of the

was purely one for the discretion of the revising franchise.

barrister under the 2nd paragraph of section 28. Two Coming now to the cases under the Act of 1878, the

members of the court, Lord" Coleridge, C.J., and first we have to notice is Porrett v. Lord (28 W. R. 393,

Lindley, J., intimated an opinion that the revising L. R. 5 C. P. D. 65). There the appellant's qualification

barrister had rightly exercised his discretion, and that was described in the list as" a house, 8, Birley-place."

the reasons given by him (which appeared very fully in He was objected to on the grounds that his " name, place of

the case stated) were sound and good, and sound and abode, nature of qualification, and the name and situa

good they probably were. But it is very material to tion of his qualifying property,” were not correctly de

point out that this intimation of opinion was no part of scribed. It turned out that he had changed his residence

the judgment, and is not binding on any revision court. from No. 8 to No. 9, Birley-place, and had sent in a

One of the reasons given by the revising barrister “declaration for amending misdescription,” under section

was that he did not wish to disturb the practice of his 24 and form (M.) of the Act, in which he stated his

predecessor, and it is obvious that the practice “correct place of abode” as “ 9, Birley-place," the

of revision courts may differ in many parts of “correct nature of qualification" as "houses in succes

the country. It is also well to note that if sion," and the “ correct name and situation of qualify.

case had been of a renewed, and not of a new, claim, the ing property" as “ 8, Birley-place and 9, Birley-place."

lodger would have been on a "list," and the revising It was held that the revising barrister was right in ex

barrister would have been bound to amend under the punging the name from the list, inasmuch as there had

1st paragraph of the section. But how far does the been an alteration of the nature of the qualification. It

word “mistake” go? It is curious to observe that the is impossible to read the judgments and not to see that

point argued in James' case—that there had been no this decision was technically correct, but right as it was

mistake at all-was not taken in Pickard's case. In in the letter, it scarcely seems to be in accordance with

James' case the objector bad merely omitted the word the spirit of the enactment (section 28) of the Act of parliamentary,” but had otherwise complied with the 1878, which directs the revising barrister to correct mis

form, and Lord Coleridge, C.J., said: "This is takes. No human being could have been misled by the

manifestly a mistake in a notice of objection; for the original misdescription. Sub-section 13, however, directs

objector wishing to describe himself properly, has that the revising barrister “shall not be at liberty to

followed the old form given in 6 & 7 Vict. c. 18, being change the description of the qualification as it appears ignorant, and not having taken the trouble to inform in the list," and as the occupation of houses in succes

himself of the altered form given by the Act of 1878." sion is a distinct qualification in itself, we do not see

But does this reasoning apply to a case where a lodger how the court could have come to any other con claimant carelessly writes" butler" underneath the clusion.

words " amount of rent paid," as happened in Pickard's The extent of the revising barrister's power to correct case? We greatly doubt whether it does, and it is worth mistakes was much discussed in the two important cases while pointing out that Pickard's case, resulting as it did of James, Appellant; Howard, Respondent (28 W. R. | in a defeat of the claimant, only indirectly decides that 923, L. R. 5 C. P. D. 225), and Pickard, Appellant ; a “mistake” within the words of the statute had been Baylis, Respondent (28 W.R, 256, L. R. 5 C. P. D. 235), made.

« PreviousContinue »