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LONDON, OCTOBER 8, 1881.
CURRENT TOPICS .............
,. 881 DISCLAIMER OF LEASE IN BANKRUPTCY........................ 883 THE PRACTICAL EFFECT OF THE CONVEYANCING ACT ........., 883 CORRESPONDENCE ......
"............... 885 CASES OF THE WEEKCrouch v. Jay ..........
885 The Working Men's Mutual Society (Limited) ............... 885 Bowden v. The Universities Co-operative Association
Maclay v. Carta Para Gold Mining Company (Limited) .... 886
888 COMPANIES ...........
888 LEGAL NEWS .....
889 LONDON GAZETTES, &c., &c..... PUBLIC GENERAL STATUTES.
clause was already sufficiently provided for by order 60a, enacted by the Rules of April, 1880. We do not think that Part I, of the schedule has any legal effect. But we doubt whether it can be judicially divorced from the Act on the ground of what took place in Parliament. There is, we believe, but one single instance in which an argument from a Bill has been judicially used for construing an Act. We can recall no precedent of a schedule without its supporting section, but there is a very recent case of a section without its supplementary schedule. The Artizans and Labourers Dwellings Act, 1879 (42 & 43 Vict. c. 64), s. 22, sub-section 3, provided that loans for the purposes of the Act should be“ secured by a mortgage in the form set forth in the third schedule hereto.” There was no third schedule at all. But the next Parliament quickly came to the rescue by the recital in 43 Vict. c. 8, that “the words “in the form set forth in the third schedule hereto' were inserted by mistake,” and by the enactment that section 22" should be construed and read as if the said words had not been inserted therein."
THE LAND BILL for England, which has been “ drafted
under the auspices of the Farmers' Alliance," is probably THE BRANCH BANK OF ENGLAND at the Royal Courts of 1 framed
framed on the principle of asking for more than you Justice was opened last Monday, and practitioners are
expect to get. It cortainly asks for a good deal. The now enabled to pay money into court in the Chancery Bill (which no one is to be able to contract himself out Division, and suitors to cash their chancery cheques, | of) proposes, in the first place, to sweep away the landwithout incurring the trouble of a journey into the City. lord's right of distress. The landlord, however, is
generously allowed a right (which it did not require any
new provision to give him) to apply to a county court WE UNDERSTAND that arrangements are in progress for
judge, who “may order" (not shall order] the tenant to
pay the rent in arrear, the order being enforceable in the transacting through the new Royal Courts branch of the
same way as an ordinary county court judgment. The Bank of England, and under the conduct of the Chancery
judge, however, is also enabled, in addition to such order, Paymaster, all matters respecting payment into and out
to make an order that the tenancy be determined. Observe of court in the Queen's Bench Division of the High Court
that this latter order is not necessarily restricted to cases of Justice.
where the landlord has applied for it; so far as appears the landlord may apply for an order for payment of
rent, and the judge, while making that order, may also A NOTION which has long prevailed in Lincoln's-inn relieve the tenant from all further obligations under his has been rudely dispelled in the course of the demoli. | lease. By clause 23 the right of the landlord to retions now in progress. In a secluded corner of the enter for any breach of covenant is restricted, so as chambers which are being removed to enlarge the only to be exercised by the court, which is to consist chapel, there was a tablet recording the merits of any of the county court judge, and two “assessors” ancient member of the inn, whose mortal remains, ac appointed by the Board of Guardians. In the cording to tradition, were built into the thick brick- next place, every agricultural tenancy is to be conwork. So strong was the belief in this story, that, before verted into a very singular kind of tenancy from the building was pulled down, a hole was driven into term to term. By clause 12, unless the landlord the wall in order to extricate whatever remained of or tenant gives a notice in writing, two years [we the venerable conveyancer. All that was found was a presume this means at least two years] before the sooty chimney flue.
expiration of the term, that he declines to renew the contract of tenancy, the existing contract is to be renewed "for the same term, at the same rent, and on the
same conditions, as in the existing contract of tenancy." IN PERUSING the Conveyancing and Law of Property Assuming that we are correct in supposing that the notice Act, 1881, the reader will probably be puzzled may be given at least two years before the expiration of what to make of Part I. of the First Schedule, which the term, the only practical result of the passing into law first schedule is headed “ Acts affected." The said Part of this provision would be to add to the costs of every I. contains a list of nine enactments relating to the entry agricultural lease or agreement the expense of preparing of judgments. But where in the Act is the section upon and serving, at the time of the execution of the lease or which Part I. of the schedule depends ? Nowhere. agreement, of a notice by the landlord that he declines to Clause 6 of the Bill, relating to requisitions of searches renew it. If it is intended that the notice shall be and certificates, contained the missing words upon which given precisely two years before the expiration of the Part I. of the schedule would have depended, but term, and only then, a charming prospect of litigation as clause 6 was struck out during the passage of the to whether the notice was served in time is opened up, Bill through Parliament - owing, we believe, to a and agents and trustee landlords will find their responsisuggestion of our own that the subject-matter of the bilities greatly increased. The period of notice required
to determine a tenancy from year to year is proposed to repealed, in the entry of 43 Geo. 3, c. 161, the word be extended to two years at least.
sixty,' which section sixty is hereby revived, as from its Clause 13 proposes to make the county court judge repeal in that schedule to the exctent to which it was in force and his two assessors (probably tenant farmers) the at the repeal." The qualifying words“ to the extent," arbitrators' as to whether, upon a proposed renewal &c., have reference, we presume, to the repeal of the of a lease or tepancy, the rent should be increased; whole of section 60 by the Statute Law Revision Act, and it is provided that “the court shall not sanction 1872, “ except as to ascertaining the rent of a house." an increase of rent unless it is proved that the We cannot think this to be a desirable mode of passing value of the holding has increased from other causes what is in effect a new Revenue law. There are, we are than the improvements made by the tenant, and shall aware, precedents for something of the kind. The determine the amount, if any, of such increase." Statute Law Revision Act, 1875 (38 & 39 Vict. c. 66), s. The practical effect of this, will, of course, be to prevent 33, enacts that “section twenty-five of the Act of the any landlord from even entering into any negotiations ninth year of King George the Fourth, chapter fiftyfor renewing the lease to his former tenant whenever eight, repealed by the Statute Law Revision Act, 1873, he thinks more rent can be got by going into the open is hereby revived, as from the repeal thereof, and all promarket. Elaborate provisions are made for enabling a ceedings taken thereunder since such repeal shall be as tenant to obtain compensation for improvements made valid and effectual as if the said section had not been by him upon his holding, the amount of such com. repealed ;” and the second schedule of the Statute Lar pensation being estimated “by the sum that a per- Revision Act, 1878 (41 & 42 Vict. c. 79), contains no less son having sufficient means to cultivate the holding is than five “revived ” enactments. The work of Statute willing to give in consideration of being admitted as Law Revision has been executed on the whole with great tenant of the holding at the rent payable by the out- accuracy. But when mistakes of this kind happen to be going tenant, or at such increased or decreased rent as may made, they should surely be corrected by separate and have been determined in the manner" by the Act provided perfectly intelligible re-enactments.
-ie., in case of disagreement, by the county court judge and his two tenant farmer assessors. The jurisdiction “ of any court of law or equity" [has the framer of the
THE PRACTICE prevalent in the Western counties of Act forgotten the Judicature Act ?] is to cease as to
requiring purchasers by private contract, or under con“ every matter of difference or dispute between a land- ditions of sale by auction, to pay & contract fee to lord and tenant in respect of, or arising out of, any the vendor's solicitor and the auctioneer, seems to have contract of tenancy, except any question as to the given rise to an animated discussion at the annual validity of such a contract," and landlords are to be meeting of the Bristol Law Society, and we are handed over to the county court judge and his tenant glad to see that a resolution was passed to the effect farmer colleagues. There are many other provisions in that, in the opinion of the meeting, the time had favour of the tenant, but we think our readers will prob. arrived for a re-consideration of the matter, and that ably have learnt sufficient for the present as to this class an adjournment should take place for the purpose of the of provisions. The provisions in favour of the landlord
council canvassing the local solicitors as to their agreeing are, first, a power to apply to the county court judge to forego their fees in the matter, and reporting to and his tenant farmer colleagues to assess damages for future meeting of the profession. It may be worth deterioration of the holding by the tenant, but solely while to point out that the auctioneer cannot sue for such (see clause 21) “with reference to the extent to which fees. In Cherry v. Anderson (Irish Reports, 10 C. L. the acts or defaults complained of have lessened the 204) leasehold premises were sold by auction upon this letting value of the holding." The triumvirate are also
among other conditions of sale, “that the purchaser empowered, if “such deterioration” be persisted in, to
shall pay two and a half per cent. auctioneer's fees." order the tenant to give up possession of the holding to
The declaration of sale was signed by the auctioneer, the landlord. The landlord may also obtain an injunc
who was employed by the vendor, and the agreement tion “ to restrain the tenant from doing any acts which,
for sale was signed by the respective agents of the vendor in the opinion of " the county court judge and his tenant
and purchaser, the conditions of sale being incorporated farmer colleagues, “would be injurious to the holding in both documents. It was held that the auctioneer or the estate of the landlord.”
could not recover his fees from the purchaser on a count for work and labour, nor on the special contract, inas
much as he was not a party to it, and no consideration The STATUTE LAW REVISION and Civil Procedure Act, moved from him, the only contract to pay fees being 1881, has revived the curious power of surveyors of taxes between the vendor and purchaser. to make domiciliary visits, which was taken away from them by the Taxes Management Act, 1880 (44 Vict. c. 19). The revival is effected in this wise. The ancient Act, 43
THE SEVENTEENTH SECTION of the Statute of Frands is Geo. 3, c. 161, 8. 60, empowers “ assessors, inspectors, repealed. Start not, learned reader: the seventeenth seoand surveyors," taking with them, where necessary, “a tion in question is not the famous section, commonly so constable, headborough, tythingman, or other officer"
numbered, relating to a sale of goods of the value of £10 to view and examine “such dwelling-house" [i.e., the
or upwards, but the section commonly numbered as the dwelling-house subject to house-tax), “in order to
sixteenth, directing that writs of execution shall only ascertain the number of windows therein and the annual
| bind goods from the time of their delivery to the oficer. rent at which the same dwelling-house ought to be The repeal is effected by the Statute Law Revision and charged," and for so doing they are to have liberty " to
Civil Procedure Act, 1881 (44 & 45 Vict. c. 59), to the pass through any house or houses, and to go through
schedule of which, containing a whole host of enactany court, yard, or back side,” &c. The Taxes Manage
ments repealed as “spent or haring ceased to be in ment Act, 1880, repealed a large number of enactments force otherwise than by express and specific repeal of relating to this subject, and amongst them 43 Geo. 3, C. Parliament," the Legislature has considerately prefixed 161, s. 60. But the repeal of section 60 was either the the note that “this schedule is to be read as referring result of a pure mistake, or else the Inland Revenue to the Revised Edition of the Statutes prepared under the officials repented of the abolition of the power to make direction of the Statute Law Committee, in all cases domiciliary visits. At all events the Statute Law
of statutes included in that edition. The section Revision, &c., Act, 1881, contains, amongst the list of
commonly numbered seventeen is numbered sixteen "in repealed enactments, the following:-"In the third that edition," and no doubt correctly so numbered. schedule [of the Taxes Management Act, 1880, of which other sections are also repealed), containing enactments
DISCLAIMER OF LEASE IN
the obligations of his own lease.” The Master of the Rolls says :-“The generality of the words of the section must be so far limited as to have the effect merely
of relieving the estate of the bankrupt and the trustee The importance of the subject must be our excuse for
from liability on the one hand, and on the other entitling returning to the discussion of the recent cases of those whose rights as regards the enforcement of Smalley v. Hardinge (29 W. R. 555), and Ex parte liabilities against the bankrupt or trustee are interfered Walton (which has now been reported in the current with by the disclaiiner to prove against the bankrupt's number of the Law Reports). In the former case
estate for the amount of the injury they may have Mr. Justice Mathew had held that a lessor, after | sustained.” disclaimer by the trustee of the bankrupt lessee,
The practical result of the last decision with regard to was entitled to eject a sub-lessed of part of the sub-lessees is no doubt this, that, losing the benefit of the property. The Court of Appeal (consisting of Lords indemnity which their lessor had given them against the Justices Bramwell, Baggallay, and Lush) considered that covenants in the superior lease, they lose the benefit of as the sub-lessee would not have been prejudiced by the their sub-leases so far as the terms of holding under voluntary surrender of the principal lease, he was not
these are more advantageous than under the superior lease. affected by the disclaimer. Ex parte Walton, it will be For what they thus lose, they are put to prove remembered, also deals with the relations of the land against the bankrupt's estate. Sub-lessees of part of lord and a sub-lessee. The entire property had here the property in the disclaimed lease are in a peculiarly been sub-let, and in consideration of a premium) at a
disadvantageous position, for no doubt the principle of E. smaller rent than that reserved by the lease. An appli
parte Walton covers their case. cation by the lessee's trustee for liberty to disclaim was There is another question, whether the landlord, after opposed by the landlord, on the ground that a disclaimer | disclaimer, could take advantage of section 9 of the would leave him only the rights attaching to the reversion
statute 8 & 9 Vict. c. 106, as giving him the rights of reof the sub-lease. The Court of Appeal gave leave to versioner on the underlease, and at the same time maintain disclaim, holding that the landlord's rights of distress against the sub-lessee his rights under the original lease. and re-entry upon the property in respect of the lease | Perhaps by setting up against the sublessee rights disclaimed would subsist notwithstanding the dis- grounded on his succession to the immediate reversion claimer ; and that the sub-lessee could prove against the upon the sub-lease he would adopt the sub-tenancy, and bankrupt's estate for his damnification in respect of the
lose against the property comprised in it the advantages difference of rent. As we pointed out at the time preserved to him by Ex parte Walton. of the decision, the sub-lessee is not by the dis. claimer relieved from his previous liability to distress and forfeiture on breach of the provisions in the superior lease. The trustee and the bankrupt have got rid of their liability, and the landlord has no one to sue upon
THE PRACTICAL EFFECT OF the covenants in the lease ; but a sub-lessee, claiming THE CONVEYANCING ACT. possession for part of the term granted by the lease and an interest carred out of the lessee's interest, cannot
III.-CONTRACTS FOR SALE. enjoy such possession and interest, except subject to the We propose in this article to examine the subreversionary rights attached to the term in its inception. division, Contracts for Sale, wbich begins the second
It does not appear that the ejectment in Smalley v. part of the Act headed “Sales and other Transactions," Hardinge was brought for breach of the covenants in and consists of sections 3 and 4. the principal lease; had it been, the action ought, Section 3 is intended to supplement the Vendor and according to Ex parte Walton, to have succeeded. The Purchaser Act, 1874, in such a way that the two toplaintiff in Smalley v. Hardinge claimed to re-enter by | gether may supply a statutory set of common form reason of the extinction of the sub-tenant's interest conditions of sale, sufficient to meet the requirements of with that of his landlord on the disclaimer, and failed all ordinary cases. The present enactment, like the in that contention. In theory the decisions may per former one, is distinguished by a brevity which is fectly well stand together. Indeed the spirit in which too dearly purchased by the omission of much that ought the judges in Smalley v. Hardinge treat the language to have been inserted, and also by an undesirable trick of the 23rd section is quite agreeable to the principle of of casual allusion which leaves the reader to gather the Er parte Walton. What the court had been asked, and meaning not from the text or the context but from his refused to do, was to give a very wide effect to the knowledge of the usual course of affairs. words of the section ; what it did was to decide It should be premised that by sub-section (10.) the that the disclaimer did not have a certain result provisions of this section are restricted to “sales made beyond what would have arisen from a voluntary after the commencement of the Act.” When is a "sale" surrender a result affecting the relations between made ? when the contract is entered into or when it is other parties than those to the fictitious surrender. completed ? In sub-section (11.) a very different phrase This harmonises very well with the tenour of Ex parte is used. There we are told that the provisions of the Walton. That case was before the Court of Appeal at section are to apply only “if and as far as a contrary Lincoln's-inn on two distinct days; and the language | intention is not expressed in the contract of sale," and employed by the judges must be taken as carefully are “ to have effect subject to the terms of the contract, weighed. Lord Justice James says, "By the law of and to thə provisions therein contained.” We cannot England a lessor has a double right — a right in believe that this awkward variation is due to design; and personam on the contract, a right in rem by if we did, it would not raise our opinion of the designer. distress on the property demised, and by the By sub-section (1) the purchaser of a derivative lease power of re-entry for non-payment of rent or breach is, in the absence of express contract, deprived of “the of covenant. Where the lessee makes a sub-demise right to call for the title to the leasehold reversion." the sub-tenant is not liable on the contract, but he takes This is, of course, intended to supply the omission in the property subject to all the lessor's rights in rem, rule 1 of section 2 of the Vendor and Purchaser Act, and it would be very unjust and unreasonable if a lessee 1874, which says that, “under a contract to grant or who takes the property subject to liabilities could by any assign & term of years, whether derived or to be arrangement whatever with a third party derogate from derived out of a freehold or leasehold estate, the intended the lessor's rights. Of course the lessee may enter into lessee or assign shall not be entitled to call for the title any contract he pleases with his sub-lessee by which he to the freehold.” The effect of the new legislation is (the lessee) expressly or impliedly undertakes to discharge that a purchaser cannot call for the leasehold
title. It must be observed that while the earlier these indicia, there is no more reason why the purchaser provision related to contracts both to grant and to assign should dispense with this particular right than why he a term of years, the new provision relates only to a con- should dispense with anything else mentioned quite at tract to assign an existing derivative lease. Under a random; and the Act might as reasonably have forbidden contract to grant an underlease, the intended underlessee him to insist upon the due execution of any deed dated can still call for the leasehold title.
in the month of April, or to require proof of the death Sub-section (2) apparently adopts from the Vendor and of anybody whose name began with an F. Purchaser Act the use of the word " freehold," originally It may be observed that this sub-section does not derived from the slang of auctioneers, to mean “fee protect against objections and requisitions to the ensimple.” It enacts as follows:
franchisement ascertained aliunde, and that it does not " Where land of copyhold or customary tenure has provide that the purchaser shall take under and subject been converted into freehold by enfranchisement, then, to the restrictions and conditions contained in the deed under a contract to sell and convey the freehold, the of enfranchisement. Neither of these things can be purchaser shall not have the right to call for the title to safely omitted in such a condition, make the enfranchisement."
It may be added that the sub-section we are considerThis can hardly mean to leave upon the vendor the ing can hardly have much operatinn, for it was expressly burden of proving that the lands were actually so con- decided by the late Master of the Rolls (Kerr v. Parson, verted into freehold; because this would oblige him, not 9 W. R. 447, 25 Beav. 394) that under the Copyhold only to submit to have the title to make the enfranchise. Enfranchisement Act, 1852, a good title to the lands ment “ called for," but to show a good title in answer to enfranchised may be made without any proof of the the call. Does it then mean that, upon an open contract lord's title. to sell land in fee simple, the vendor may avoid the Sub-section (3) provides a common form condition as to obligation to make out any title whatever, by commencementof title of a stringent character. But it promerely producing a deed, purporting to enfranchise vides that the purchaser is to "assume, unless the conthe land, dated the day before the contract, and executed trary appears, that the recitals contained in the by somebody who purports to be the lord of some sup- abstracted instruments, of any .. document, posed manor in which the land is mentioned to be forming part of that prior title, are correct, and give all situate? And if it does not mean this, whereabouts the material contents of the . . . . document so between these two extremes are we to place its true recited.” How is the contrary to “ appear"? Does meaning ?
what becomes known to the purchaser“appear"? Or is The reader must bear in mind that the part of the Act it to “appear on the abstract''? and, if so, how can it ? under consideration will be quite useless, unless the It is to be observed that this clause, and the clauses statutory conditions supplied by it are obviously appro- (6) relating to expenses, and, (7) relating to a single priate to all ordinary circumstances, and quite clear and abstract for the purchaser of two or more lots held easy of application. Then he will be able to appreciate under the same title, are made applicable to sales "of the felicity with wbich the task has been executed. It any property," and " property” is defined in section 2 was a task of immense difficulty, yet & careless personas including real and personal property, and any estate might think it very easy. The kind of difficulties which or interest in any property, real or personal, and any we are suggesting do not often occur under the estab. debt, and anything in action, and any other right or inlished practice; and it might therefore seem to be a terest. It appears, therefore, that these rules will apply very simple matter to provide an ideal scheme which to the sale of an incorporeal hereditament, to which, it should be equally free from their intrusion. Dolus latet seems, the rules in section 2 of the Vendor and Par. in generalibus. The safety-bringing restrictions which chaser Act, 1874 (which apply only to contracts for exist, without being particularly noticed, when we are
the sale of “ land"), do not apply. This has apparently considering the bearing of specially constructed condi.
been overlooked by the framers of the new provisions. tions upon an actually existing title, disappear when we The remainder of this section may be dismissed seek to make those conditions of universal application, by without much further remark. Sub-section (5) enacts the simple device of writing “whenever" in front of that, in the absence of express contract, on production them. No better illustration could be found of our of a receipt for the last payment due for rent under an meaning than that supplied by sub-section (2) of the underlease, the purchaser shall assume, unless the contrary Act. In the actual practice, when copyholds have been pre appears, that all rents reserved by, and covenants contained viously enfranchised by mutual agreement, and the vendor | in, not only the underlease, but also every superior lease, desires to avoid showing the title of the lord, the exclud. have been paid and performed. The common stipulaing condition gives some particulars as to the enfran tion that a receipt for rent given by & lessor shall chisement, and thus offers to the purchaser a fair operate as proof that the covenants of the lease have choice for his consideration. He will know for been duly performed, is of course open to this objection, how long the land has been held under and ac. that breaches may exist of which the lessor was not cording to the freehold title purporting to have | aware at the time of giving the receipt, which would, been created by the enfranchisement; he will know therefore, not operate as a waiver of them. But, in the of what manor the property was formerly held ; case of an underlease, we have to contemplate not only and le can easily discover by common report—if he concealed breaches: a lessor holding by a derivative cannot, it will be a warning to him to refuse assent lease not only might, but certainly would, accept pay. to the proposed condition-whether any reputed manor ment of rent from his lessee, even while his own lessor of that name does exist in the specified locality, and on was suing him in ejectment. This is, therefore, a very application to the steward he will be able to ascertain stringent condition. whether snch an enfranchisement was made as is alleged. In the last sub-section we find something which may Given these data, he may very fairly be called upon to have been meant to meet the difficulties above suggested decide whether he will consent to dispense with further by us in reference to enfranchised copy holds :proof and information ; and if he consents, he is fairly 1 "(11.) Nothing in this section shall be construed as bound by his decision. But when this kind of trans. binding a purchaser to complete his purchase in any case action is reduced to general terms in four lines of an Act where, on a contract made independently of this section, and of Parliament, all these practical safeguards disappear.
containing stipulations similar to the provisions of this The very essence of them was, that all the details of the
section, or any of them, specific performance of the contransaction by which the land purported to have become
| tract would not be enforced against him by the court." freehold, or at any rate the means of obtaining them, But how does this meet those difficulties? We had been communicated to the purchaser before he was objected against the condition contained in sub-section asked to rely upon their plausibility. In the absence of (2) that it binds the purchaser to take an enfranchise
ment for granted, without having been previously made without an affidavit, and on going before the master he aware of those details which are necessary to enable him offered no opposition to the application, but admitted to form a rational judgment of the probability that the the debt, only asking for a little time, whereupon the enfranchisement is valid. But if he chose to consent to master inquired whether he would bring the money into the insertion of that condition in the contract, he would court, to which he replied that he would, and that he of course in the absence of actual fraud) be bound by should prefer an order to that effect. The master then, it; nor can we see anything in sub-section (11) to re notwithstanding my strong protest, made an order giving lieve him from it. Or is sub-section (11) to be taken to the defendant liberty to defend, provided he brought mean, that if the state of things subsequently disclosed | into court, within a week, the amount indorsed on the by the title is such as the court thinks the purchaser writ “ to abide the event." would probably have accepted if it had previously been On the following day I took out a summons to rescind made known to him, then he is to be bound by the the master's order, and for liberty to sign judgment implied acceptance contained in sub-section (2), other- forth with, returnable the next morning at eleven o'clock. wise not? Even granting that this is to be found in the On the hearing of that summons the juāge said that Act,- and we cannot find it there,-how much litigation the master was clearly wrong in the order he had made, will be required to determine the measure of probability and was about to indorse the summons accordingly, to be applied to such cases by the court ?
when the defendant's solicitor urged that, inasmuch as We now turn to section 4, which is as follows :
the copy summons had only just come to his hands, he « (1.) Where at the death of any persou there is subsist.
ought to have time to communicate with his client, and ing a contract enforceable against his heir or devisee, for
to answer the plaintiff's affidavit; whereupon the judge the sale of the fee simple or other freehold interest,
(my protests notwithstanding) adjourned the summons descendible to his heirs general, in any land, his personal for a week-viz., three days beyond the time limited by representatives shall, by virtae of this Act, have power the master's order for payment into court. What course to convey the land for all the estate and interest vested in the defendant's solicitor intends to take under these him at his death, in any manner proper for giving effoot to circumstances remains to be seen. the contract.
Had the master made an order for immediate judg“ (2.) A conveyance made under this section shall not ment, as he clearly ought to have done, the sheriff affect the beneficial rights of any person claiming under would by this time have been in possession of a writ any testamentary disposition or as heir or next of kin of a
of fi. fa., and the plaintiff's money would most testator or intestate.
likely have been secured, but as matters now stand, the “(3.) This section applies only in cases of death after the
chances are that it will be lost. commencement of this Act."
Why should the interests of clients suffer in this Here we may remark in passing that “estate” means, I way? primâ facie, a legal estate. An equitable estate, 80 To show the uncertain results of these applications for called, was a mere right, though it was held to devolve | judgment, I may add that on an application in another in certain ways copied from the limitations of legal action on a bill of exchange, by the same plaintiffs estates. Is it certain that an equitable fee, the against the same defendant, only a few weeks ago, an legal estate being out-standing, would be within this order for immediate judgment was made by another section ? Again, as readers of an article which appeared master without the slightest hesitation, the facts in in our last number will remember, an estate pur autre both actions being identical. vie, although it passed to the heir general if named in London, October 5. A COMMON LAW CLERK. the grant, was not, properly speaking, descendible to the heir general. Is it at all clear that this case is within the section ? and if not, was it omitted by design ? Leases for lives are estates pur autre vie, and are (or lately were) common in Ireland, to which this Act
CASES OF THE WEEK. extends.
But as the section only offers a conveyance by the Ex PARTE APPLICATION — INCORRECT AFFIDAVIT IN executor for what it is worth, very properly abstaining
SUPPORT-DISMISSAL OF MOTION.-In the case of Crouch from giving him power to bind the heir or deviseo, we v. Jay, before Kay, J., sitting as Vacation Judge, on the may reasonably anticipate that purchasers will not be
30th ult., a motion was made to restrain the defendant very ready to accept such a conveyance.
from distraining the goods and effects of the plaintiff. It appeared that Chitty, J., had already granted an interim injunction upon an ex parte application' made before him by the plaintiff. The statement made in support of that
application had omitted important facts, and had also con. CORRESPONDENCE.
tained a statement that no account of the sums claimed had been rendered by the defendant to the plaintiff, which
statement was shown now to be incorrect. The defend. APPLICATIONS FOR JUDGMENT.
ant also denied the plaintiff's story. Kay, J., said that [To the Editor of the Solicitors' Journal.]
under such circumstances the court must be extremely Sir,—Will you kindly allow me a little space for the
loath to continue the injunction already granted. Where
mis-statements and imperfect statements appeared in the purpose of showing the delay and annoyance to which
evidence of one party, the court must be more inclined to suitors in the High Court are subjected at the hands of
believe the evidence of the other party. His lordship had masters and judges on applications for liberty to sign always understood that the rule of the court was that judgment under order 14, rule la ?
where an ex parte application was made the party making About three weeks ago, by the direction of my princi. it was bound to display uberrima fides. If there had been pals, I issued a writ on a bill of exchange (drawer any doubt in his mind in the present case arising from the against acceptor), the consideration for which was goods conflict of facts, he would have taken these considerations sold and delivered in the way of trade.
into account and dismissed the motion; as it was he disThe defendant having appeared, I immediately took
missed the motion on its merits, with costs.-SOLICITORS, out a summons for judgment, which was at once duly
C. H. Robertson, for R. E. Large ; Taylor, Hall, d: Taylor, served upon defendant's solicitor, accompanied by copy affidavit in support in the usual way.
WINDING UP OF COMPANY-PROVISIONAL LIQUIDATOR The summons was not made returnable till seven days
--LEAVE TO BRING ACTION IN NAME OF COMPANY.-In after its issue, thus giving the defendant ample time to the case of The Working Men's Mutual Society (Limited), make a counter-affidavit, had he thought proper to do so. also before Kay, J., on the 30th ult., an ex parte application
The defendant's solicitor attended on the return, but was made for leave to use the name of the company for