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thirty or forty feet, or even less, in width, running SAUNDERS, Esq., Barrister-at-Law, Metropolitan Police parallel to one another with no space between. These Magistrate. Butterworths. strips of land are cultivated in common to this extent,
A good deal of interest attaches to the new edition of that, by the rules of the community which the owners
this standard book, owing to the changes introduced by form, the lands must generally be sown with wheat one
the Summary Jurisdiction Act. The new forms are given year, with barley or oats the next year, and the third
| in their proper places, and Mr. Saunders has prefixed to year must lie fallow, or in some other similar rotation.
the book a memorandum relating to claims of civil debts, Each owner cultivates his lands according to the rules
which might have been more useful if it had enumerated thus laid down. When the crops are taken off, the land
the chief matters falling within the new civil procedure being open and undivided by any fence, the owners put
established by section 6 of the Act, and had pointed out in their cattle, each according to the extent of his land,
land, the exception from it of bastardy orders. In addition to who range over the whole, feeding on the stubble that is
the Summary Jurisdiction Act, the Legislature has proleft, not only on the lands of their owners, but also on
vided fresh tasks for the editor, since the last edition was all other lands in the same field. The consequence of
published in 1876, by the passing of many important this evidently is that no person can cultivate his land
Acts affecting the subject matter of the work, from the otherwise than his neighbours do. If, in the year that
Canal Boats Act, 1877, to the Wild Birds Protection Act the land is fallow, any person should attempt to sow
of last session Forms are given for proceedings under wheat or green crops, or anything else on his land, the
each of these statutes; and the care with which the cattle of his neighbours would at once eat it up and
work has been executed may be judged of from the destroy it; for during the year in which the field is
fact that the only error we have as yet discovered is the fallow, the neighbours put in their cattle to range over
reference in the margin on p. 115 to the Act to prevent the whole."
the administration of poisonous drugs to horses and other Here, in this form of right, sometimes calied in our
animals as “ 39 Vict. c. 14," instead of 39 Vict. c. 13. books common of shack, is a clear survival of the
We can commend this edition as both complete and communal mode of enjoying the arable lands, just as
accurate. common of pasture appendant indicates the original mode of enjoying the waste. And our author summar. izes his conclusions as follows:-“The members, there
THE CITY TITHES ACT, 1879. fore, of the original community, or vill, had arable lands, THE LONDON (CITY) TITHES Act, 1879, AND THE OTHER which they cultivated on a common system, pasture TITHE ACTS EFFECTING THE COMMUTATION AND REDEMPlands which they either divided or allotted amongst TION OF TITHES IN THE CITY OF LONDON. WITH AN themselves or else depastured in common, and also rights INTRODUCTION, NOTES, &c. Ry H. B. BURNELL, Esq., of common on the adjacent and uncultivated land, which Barrister-at-Law. Stevens & Sons. constituted the mark in its primary sense, out of which Mr. Burnell's subject is of somewhat limited interest, the arable and pasture were anciently reclaimed and but he has treated it with great care and completeness. from which they were divided. In most cases, from one The payment of tithes in the city of London was regucause or other, this simple state of things in time dis lated for more than three centuries by a decree made in appeared. The lords of the manor obtained authority
the reign of Henry VIII., by the Archbishop of Canter. over the freeholders who became their tenants; and the bury, the Lord Chancellor, and other lords and knights. ancient system of common agriculture became converted | The London City Tithes Act, 1864, provided that the into the system of manors consisting of lords and tithes under this decree should cease in the parishes tenants, whose rights are laid down iu law books. There mentioned in the schedule, and that instead thereof the is, however, or was until the year 1854, a community incumbents should receive the annual fixed tithes specistill existing, having laws of their own and self-govern
fied in the schedule. The Act of last year extended and ment, with respect to whom an attempt was made by | applied the provisions of the general Tithe Acts to the lord of a manor, of which some of the tenements the commutation of tithes within the city of London, were held, to destroy their custom and to bring the whole and this is the Act with which Mr. Burnell deals. After within his manorial jurisdiction. But, owing to the a clear and well-written introduction, he prints the sturdy manner in which the freeholders disputed his
recent Act in full, incorporating with it the provisions of rights, his attempt failed, and the lord himself was fain, I
the Tithe Acts, and adding notes to the sections. In for some years, to become one of the officers of this
the appendix he prints in full the Tithe Commutation little community.”
Acts. The community here referred to was the vill or township of Aston, in the county of Oxford, but into the account given by Mr. Williams of the customs which
PRACTICE. regulated it we have not space to enter. Indeed, our A DIGEST AND THE LAW OF PRACTICE UNDER THE JUDICATURE only reason for having referred at such length to the sub ACTS AND RULES, AND THE CASES DECIDED IN THE ject is the interest which must attach at the present CHANCERY AND COMMON LAW DIVISIONS FROM NOVEMtime to any discussion concerning the nature or founda BER, 1875, TO AUGUST, 1880. By W. H. H. KELKE, tion of our law of real property. These investigations Barrister-at-Law. Stevens & Haynes. show, at least, that, as there was a period when the mode
It will be worth while for the practitioner to buy this of utilizing the soil of this country was the exact opposite | little book as a means of reference to the practice cases. in every particular to that which prevails at present, our
It is not a mere jumble of head-notes : a good deal of existing law of real property has none of that sanction
labour has evidently been bestowed upon it, and the of divine right which is too often attributed to it, and
provisions of the Acts and Rules are ingeniously interthat a reformation of it to meet the requirements of
woven with the effect of the cases. It strikes us as society is no unprecedented event in our history. We
being a useful handbook for the law student, but he must will conclude by heartily commending the book to the
be warned not to trust too implicitly to the condensed attention of our readers as another instance of the
statements of the writer. For instance, the words, author's profound learning in an attractive subject.
“ generally the rules of equity shall prevail” (p. 6), are not a correct paraphrase of section 25 (11) of the Judi
cature Act, 1873. It is fair to add that Mr. Kelke says, MAGISTERIAL FORMULIST.
his preface, that it is assumed that the reader possesses Oke's MAGISTERIAL FORMULIST ; BEING A COMPLETE COL some edition of the Acts and Rules. If his little book
LECTION OF FORMS AND PRECEDENTS FOR PRACTICAL reaches another edition, we advise him to preface it with USE IN ALL CASES OUT OF QUARTER SESSIONS AND IN an admonition to the reader in all cases to consult the • PAROCHIAL MATTERS. SIXTH EDITION. By T. W. exact words of the Acts and Rules of Court.
his credit, but he had in fact forbidden her to do so, and had CORRESPONDENCE.
made her an allowance sufficient for her personal requirements.
It was aot necessary to prove that the plaintiffs had any FEES OF CONVEYANCING COUNSEL TO THE notice of the prohibition to the wife to pledge her husband's
credit. The decision in Jolly v. Rees had been acted upon for
many years, and was consistent with reason and justice, and [To the Editor of the Solicitors' Journal.]
would, therefore, be followed by the House.-SOLICITORS, Sis,-The question of the disallowance by the taxing Boyce f Ridley; Button & Grove. masters of fees charged by the conveyancing counsel of the Court of Chancery is one that has, I believe, occa
PRINCIPAL AND SURETY-BILL OF EXCHANGE-INDORSEpied the attention of the Council of the Incorporated MENT-DISCOUNT BY BANKER-RIGHT TO SECURITIES. Law Society, and has been the subject of communications In the House of Lords, on the 27th ult., judgment was de. between them and the Lord Chancellor. I have underlivered in the case of Duncan v. The North and South Wales stood that the line taken by the conveyancing counsel is Bank. The plaintiffs had received from the firm of Radford that, while they decline to submit their fees to the dis. & Sons certain bills of exchange accepted by the latter cretion of the taxing master, they will, on the applica. by way of payment for goods sold. The plaintiffs tion of the solicitors, repay, ex gratiâ, any amount which
indorsed the bills, which were discounted for them in the may have been disallowed, and which would otherwise
ordinary way by the Liverpool branch of the North and South have to be borne by the solicitor personally.
Wales Bank. Radford & Sons were also customers of the In the instances mentioned by "A Solicitor," the
bank, and before the bills had been handed to the plaintiffs,
Samuel Radford, one of the partners, had deposited with the conveyancing counsel do not appear to be willing to do
bank the title deeds of certain real property of his own, to even this. It seems to me that when a man accepts the
secure past and present discount and advances for the firm. position of conveyancing counsel to the Chancery
Before the bills fell due Radford & Sons executed a deed of Division of the High Court, he becomes an official of
inspectorship, which the plaintiffs refused to sigo, and the that court, and it rests with the court to say whether one bills having been dishonoured, the plaintiffs commenced proof its officials is to be at liberty to claim whatever fees ceedings in the County Palatine Court of Lancaster, claiming a he may think fit, or whether another official is to have declaration that they were sureties to the bank for payment by power to regulate or moderate the fees so claimed. Messrs. Radford & Sons of the balance due upon the bills,
This is a matter with which the solicitor ought to and that the security of the equitable mortgage effected by have nothing to do. It cannot be right that, while
Samuel Radford with the bank extended to such balance. compelled to employ one official, and to pay whatever
Little, V.C., made an order that the securities should be handed fees he may choose to claim, the solicitor should be
over to the plaintiffs on payment by them of the balance re. liable to have his compulsory disbursements disallowed
inaining due to the bank. The representatives of the up
secured creditors of Radford & Sons appealed, and the Court of by another official, and should have no other remedy to
Appeal (Jessel, M.R., James and Brainwell, L.JJ.) reversed save his own pocket than a petition " in formâ pauperis" the decision of the Vice-Chancellor, holding that, when the to the sense of justice of the former.
bills were discounted, the plaintiffs became principal debtors I would suggest that “A Solicitor" should communi. to the bank, although, no doubt, as indorsers, they were in cate the facts of his case to the secretary of the Incor- the position of sureties towards the prior parties to the bills. perated Law Society, with a view to the question being Hence the plaintiffs were not entitled to the benefit of the once more ventilated.
W. M. W. securities deposited with the bank, especially since they had Dec. 1.
been deposited, not by Radford & Sons, but only by one of the individual members of their firm (see 23 SOLICI. TORS' JOURNAL, 359, 27 W. R. 521, L. R. 11 Ch, D. 88). Lords SELBORNE, C., BLACKBURN, and WATSON re
versed the decision of the Court of Appeal. In the case CASES OF THE WEEK.
of an acceptor and an indorser of a bill of exchange there
is no express contract of suretyship, but there is a HUSBAND AND W1FB-NECESSARIES_WIFE'S AUTHORITY primary and secondary liability of two persons for one and TO PLEDGE HUSBAND'S CREDIT-REVOCATION-NOTICE TO the same debt, one of them, if compelled to pay it, being CREDITOR.—In the House of Lords, on the 27th ult., the entitled to reimbursement from the other. The principle appeal of Debenham v. Mellon was decided. The action was | which had been established by many authorities in favour brought to recover the price of certain articles of dress of a drawer or indorser who has been compelled to pay a which had been purchased from the plaintiffs by the defend bill ought to be applied whenever a question arises as to ant's wife, and which were admitted to be necessaries suitable any securities deposited with the holder of the bill by the to ber position. The parties were living together, and the acceptor, and the equity between an indorser and an achasband gave the wife an allowance for the purpose of pro ceptor must be taken to be the same as that between & viding clothes for herself and her children. He had forbidden surety and a principal when the creditor is not a party to her to pledge his credit, but this revocation of authority was the contract of suretyship, and would attach where the not known to the plaintiffs. Bowen, J., had entered judg. overdue and dishonoured bills and the securities are found ment for the defendants, on the authority of Jolly v. Rees together in the hands of the secured creditor when he de. (12 W. R. 473, 15 C. B. N. S. 628), and his decision had mands payment from the indoraer, and has no other claim been affirmed by the Court of Appeal (see 28 W. R. 501, | upon the securities, and when the competition is between LR. 6 Q. B. D. 394). On appeal to the House it was the indorger and the acceptor only. The fact that the argued that the plaintiffs were entitled to recover, since an security had been deposited by one member only of the ostensible authority cannot be secretly revoked, and there. | firm, who had accepted the billa, could not make any fore it was for the defendant to show that the plaintiff's knew difference. The decision of the Court of Appeal was in that he had forbidden his wife to pledge his credit. The conflict with what was said by Lord Eldon in Aldrich v. House was also asked to overrule Jolly v. Rees, on the ground
Cooper (8 Ves. 381), and by Turner, V.C., in Yonge v. that the decision of the majority of the judges in that case was | Reynell 9 Hare, 809), and therefore the judgment of the inconsistent with the dicta of the judges in many earlier Vice-Chancellor must be restored. The bank would have cases. Lords SELBORNE, O., BLACKBURN, and WATSON dis-their costs ont of the fand, and the costs of the appellants missed the appeal, with costs. The authorities showed that must be added to the securities.-SOLICITORS, Dyre & Co.; the mere fact of marriage did not invest the wife with an
Gregory, Rowcliffes, f. Rawle. authority to pledge her husband's credit as his agent, except in cases where the husband has deserted his wife, or bas, through no fault of hers, separated from her, and has not INFANTS CUSTODY Act, 1873 (36 & 37 Vict. c. 12), s. 1made a proper provision for her. Neither of those circum- APPLICATION TO VARY ORDER-APPEAL.-In a case of In re stances existed in the present case, since the parties were Holt, before the Court of Appeal on the 24th ult., an cohabiting together when the goods were supplied by the application was made for leave to appea', notwithstanding plaintiffs. Moreover the defendant bad done no act wbich the expiration of the time limited by the rules, from an order could be treated as giving bis wife any authority to pledge | made by Malins V.C., that the father of an infant about three
years of age should deliver her into the custody of her their wishes in the matter. The Court of Appeal (JESSEL mother. The order was made on the petition of the mother | M.R., and JAMES and LUSH, L.JJ.) at first expressed some (presented by the leave of the court in forma pauperis, and doubt whether there was jarisdiction to wind up such a without a next friend), and it directed tbat the infant should society, but ultimately they held that section 21 of the Act be delivered into her mother's custody until she should attain of 1870 gave the jurisdiction, and they held that, as the case sixteen or further order. More than a year after the order had stood before the Vice-Chancellor, a winding-up order was made, tbe father moved before the Vice-Chancellor to ought to have been made on the first petition, inasmuch as discharge it, and his application was refused. He then gave the strong evidence of the petitioner as to the state of health notice of a motion in the Court of Appeal for leave to appeal of the assured had not been met at all. JESSEL, M.R., said from the original order. On the bearing of the motion it that it was not enough for the respondents to such a petition was stated that the object was to show that, under existing to assert that they disputed the petitioner's claim; they were oircumstances, the mother was not a proper person to have bound to make a primâ facie case, so that the court could see charge of the infant. The court (JESSEL, M.Ř., and JAMES that there was a question to be tried. But, having regard to and LUSH, L.JJ.) said that the proper course was not to the enormous losses which must result to the policy-holder3 appeal, but to apply to the Vice-Chancellor to vary the from the making of a winding-up order, the court said that order. This could be done at any time, because the order | it ought to exercise the powers conferred by section 91 of the was only made until further order. And section 1 of the Companies Act, 1862, of summoning a meeting of the policy-Act, which provided that the order for custody should be holders in order to ascertain whether they desired a winding made upon the petition of the mother by her next friend, did up, or an order for the reduction of the policies in lieu of & not apply to such an application, but only to the original winding up. But the court said that, as the power of petition. - SOLICITORS, Shaw & Tremellen; Makinson f | reduction given by section 22 was to be exercised " in place Carpenter.
of making a winding-up order," the winding-up order must be discharged, and the bearing of the appeal must stand over
until after the meeting of policy-bolders had been held. The COMPANY-WINDING UP- JURISDICTION - MUTUAL LIFE
court expressed a decided opinion that the holders of policies ASSURANCE SOCIETY-LIABILITY OF POLICY-HOLDERS
in a mutual society such as this could not be placed on any COMPANIES ACT, 1862, ss. 91, 199–LIFE ASSURANCE COM
list of contributories, or made liable to pay anything whatever. PANIES Act, 1870, ss. 21, 22.-In a case of In re the Great
Their only contract was to pay the premiums on their Britain Mutual Life Assurance Society, before the Court of
policies, and they were entitled at any time to discontinue Appeal on the 24th ult., questions arose as to the jurisdiction
the payments and to surrender their policies. The society of the court to wind up a mutual insurance society, and as
was, as JAMES, L.J., said, a mere benefit club, the suns to the liabilities of the policy-holders. The society was a
which had arisen from premiums being the proporty of the purely mutual one, constituted in 1844 by a deed of settle
policy-holders, and all that could be done in the winding up ment, its funds arising entirely from the premiums on policies.
was to distribute the fund among the policy-holders in the It had no shares and no capital. On its first formation there
proportions in wbich they were entitled thereto, subject to was a guarantee fund, which was contributed by the first
the payment of the costs of the winding up.-SOLICITORS), directors. This fund was to be repaid in five years, and
Longcroft f. Myers; G. Blagden ; Harcourt; Ashurst, might be repaid sooner, and it had been repaid long before
Morris, & Co.; Pritchard & Marshall. the commencement of the proceedings in the present case. The deed of settlement provided that the parties thereto, and the several other persons who should thereafter be desirous of
MORTGAGE — ATTORNMENT CLAUSE – DISTRESS AFTER becoming members of the society, and should, for that BANKRUPTCY OF MORTGAGOR.-In a case of Ex parte Blakey, purpose, effect assurances with it, should, so long as their before the Court of Appeal on the 25th ult., the question . respective assurances should be kept up and be in force, be
was whether a mortgagee, whose mortgage deed contained and continue, until it should be dissolved under the provisions
an attornment clause, was entitled to levy a distress under the thereinafter contained, a society under the above name for
clause after the bankruptcy of the mortgagor. The mortgage carrying on the ordinary business of life assurance. It was
deed was executed on the 1st of June, 1871, and it contained also provided that no member, wbether an officer of the
a clause by which the mortgagor attorned and became tenant society or not, should be personally liable on any policy from vear to year to the mortgagees in respect of the issued by the society, but that the funds or property of the
mortgaged property, at the yearly rent of £800, to be paid society (including the guarantee fund, if it should be necessary
by equal quarterly payments, the first on the day of the to resort thereto) should alone be liable to satisfy claims on
execution of the mortgage. And it was agreed that it should the policies, and each policy contained an express provision to be lawful for the mortgagees, at any time after the 1st of this effect. The society was never registered under the September, 1871, without giving previous notice of their Companies Act, 1862. On the 28th of October a petition
intention so to do, to enter upon, and take possession of, the was presented to wind up the society, the petitioner being the property whereof the mortgagor bad attorned tenant, and representative of a deceased holder of a policy for £5,000. to determine the tenancy created by the attornment. The The company bad resisted payment of the claim, on the rent fixed by the clause was equal to the amount of a year's ground that, when the policy was issued, the state of the interest on the mortgage debt. In 1879 the mortgagor filed health of the assured had been misrepresented. The petitioner | a liquidation petition, and, after a receiver bad been appointed, had commenced an action against the society on the policy, and had taken possession of the debtor's property, the which action was still pending when the petition was mortgagees distrained, under their attornment clause, upon presented. The petitioner filed a number of affidavits by
the debtor's goods on the mortgaged property for two quarters' persons who had known the deceased assured to prove that rent. Bacon, C.J., held (28 W.R. 708) that the distress was his health was good at the time when the policy was granted. valid, and that it must prevail against the title of the The society adduced no evidence against this, except that of trustee in the liquidation, and this decision was affirmed by the belief of some of their officers. On the 30th of October the Court of Appeal (JAMES, COTTON, and Luse, another winding-up petition was presented by the holder of L.JJ.). It was contended that, by reason of the provision for a policy which was still corrent. The two petitions came on
its determination at any time without notice, the tenancy for Learing together, and the society did not oppose the
created by the attornment was really a tenancy at will, and making of a winding-up order. Hall, V.C., was of opinion that it had been determined by the bankruptcy of the. that there was a bond fide dispute as to the first petitioner's mortgagor. The court, however, held that the tenancy was claim, and he made a winding-up order on the second from year to year, and that it had not been determined, con. petition, giving liberty to the first petitioner to apply for the sequently, that the distress was valid.-SOLICITORS, Gregory, costs of it, if bis claim should be ultimately established. Rowcliffes, & Co.; Pritchard, Englefield, f Co.. The first petitioner appealed, and before the appeal came on for hearing a committee had been formed by holders of policies of the society, who desired that the court should MORTGAGE-CONSOLIDATION-CESSER OF MORTGAGOR'S exercise the power given to it by section 22 of the Life | INTEREST ON BANKRUPTCY.-In & case of Ex parte Williams, Assurance Companies Act of 1870, to reduce the amounts of before the Court of Appeal on the 25th ult., & curious the contracts of the society so as to render it solvent again, 1 question arose as to the consolidation of two mortgages. The This committee appeared by coursel, who asked that the bankrupts had mortgaged a leasehold bouse to w., to winding-up order might be discharged, and that an oppor. secure £500. The lease of the house contained a provision tunity might be given to the policy-holders of expressing enabling the lessor to re-enter and pat an end to the lease on the bankraptoy of the legsees. The bankrupts after. properly, and must sell at a fair value, and he could not sell wards mortgaged another leasehold bonse to W., to to himself. But he was not bound to abstain from selling secure £200. After the bankruptoy the lessor of the house because he was not in urgent want of his money, or because comprised in the first mortgage entered and determined he had a spite against the mortgagor. And the court held the lease. The mortgagee olaimed to consolidate the two that on the evidence the plaintiff's case entirely failed, and mortgage debts, and insisted that the trustee in the bank- | they affirmed the decision of Fry, J., in favour of thé deruptcy could not redeem the house comprised in the second fendants.-SOLICITORS, Rooks de Co.; Crosse, Sons, f Riley. mortgage without paying both debts. The court (JAMES, COTTON, and LUSH, L.JJ.) held that there was no right to consolidate, on the ground that the first mortgage hadi PRACTICE-MOTION FOR RELEASE OF PRISONER-PREceased to exist by the determination of the lease. JAMES, I CEDENCB.- In a case of Ashton v. Sherrock, before the Master L.J., said that he was not disposed to extend the doctrine
of the Rolls, on tho 26th ult., a question arose as to whether of consolidation to any case which was not olearly covered on motion days a motion for the release of a prisoner by authority or logically dedacible from some decided case,
attached for contempt had precedence over all motions, on and he could find no antbority for applying the doctrine to
the ground that it affected the liberty of the subject. JESSEL, & case where one of the mortgaged estates had ceased to
M.R., said that such motions always had priority.-SOLICI: exist. It was really an attempt to tack a debt which had TORS, Phelps, Sedgwick, $ Biddle ; Pritchard, Englefield, f once been a mortgage debt to a security for another debt.
Co. COTTOX, L.J., said that the doctrine of consolidation assumed the right of the mortgagee to hold both properties, DEBTOR AND CREDITOR-COMPOSITION-SECURED CREDI. and the right of the mortgagor to redeem both when both
TOR-VALUATION OF SECURITY-COMPOSITION ON BALANCEdebts were paid, and it could not apply to a case where
RIGHT TO SURPLUS PROCEEDS.-In a case of Couldery v. Bart. there was only one property in the hands of the mortgagee. | rum, before the Master of the Rolls, on the 30th ult., a question It was necessary that both properties should remain in was argued as to whether compounding debtors under the specie in the same mortgagee. JAMES, L.J., added that, if
Bankruptcy Act, 1869, are entitled to any surplus realized the case of Barrow v. Manning (Weekly Notes, 1880, p. over and above the value pat by creditors upon a security 108) was inconsistent with this decision, he did not see held by them where tbe creditors have accepted a composihow it could be supported.-SOLICITORS, Lawrance, Plews, tion for the residue of their debt. The plaintiffs were & Baker ; Aldridge.
debtors who made & composition with their creditors under the Bankruptcy Act, 1869. The defendants were secured
creditors who had placed a value on their security, and had MORTGAGOR AND MORTGAGEE-POWER OF SALE_DUTY OF proved for the balance and received the composition on such MORTGAGEE.-In a case of Nash v. Eads, before the Court balance. The defendants' security realized more than the of Appeal, on the 1st inst., an important question was raised value placed upon it by them, and the debtors now brougbt as to the position and duty of a mortgagee with reference to the
this action claiming the surplus, and a re-assurance of the exercise of a power of sale contained in his mortgage.
this action claiming the surplus, and a re
W.reference to be orientament
The subject of the security. For the defendants it was contended action was brought by a mortgagor to set aside a sale of the that under the Bankruptcy Act, 1869, and the Bankruptcy -mortgaged property made by the mortgagee under his power of Rules, 1870, it was only in cases of bankruptcy, and not of sale, on the grounds that the sale was made for an improper composition, that the debtors or their estate would be purpose, that in making it the mortgagee was actuated by an | entitled to the benefit of any surplus. JESSEL, M,R., was improper motive, and that the property was sold, not because of opinion that the composition and the value placed upon She mortgagee wanted his money, but because his solicitor | their security when paid were a complete satisfaction for the desired to obtain the payment of some costs, wbich he could debt, and he accordingly gave judgment for the plaintiffs.Pot obtain in any other way. It was also alleged that the SOLICITORS, Tatham, Elkins, & Nash; C. Butcher ; Reed & sale had been improperly conducted, and that the property | Lovell. had been sold at à gross undervalue. In support of the first ground alleged, reliance was placed on the case of Robertson v. Norris (1 Giff, 424), in which Stuart, V.C., RAILWAY_SALE OF LAND-Right to POSSESSION-Desaid that Lord Eldon, in Downes v. Glazebrook (3 Mer. 200), 1 BENTURE STOCK-RECEIVER-WORKING EXPENSES-MODE Chambers v. Goldwin (9 Ves. 271), and Cholmondeley v lop ENFORCING PAYMENT. - In a case of Great Eastern Railway Clinton (2 J. & W. 1), had stated the principle that the Company v. East London Railway Company, before the mortgagee is a trustee for the benefit of the mortgagor in the Master of the Rolls on the 30th ult., the plaintiffs asked exercise of his power of sale, and the Vice-Chancellor added, for a declaration that certain tolls and easement rents payable “The legitimate purpose being to secure repayment of his | to them by the defendants were properly part of the current mortgage money, if he uses the power for another purpose expenses of the defendants' line, and payable by a receiver from any ill-motive to effect other purposes of his own, or to appointed thereof, and also an order for possession of the land serve the purposes of other individuals the court considers i over which the easements extended, on the ground, in effect, that to be a fraud in the exercise of the power, because it is that the purchase-money thereof was unpaid. Under an using the power for purposes foreign to that for which it was agreement made between the two companies, the defendants intended." And the Vice-Chancellor went on to say that were to pay the plaintiffs a certain easement rant for the user such an exercise of the power would vitiate the sale as against of part of their land. The plaintiffs were to acquire certain the parchaser. The court (JESSEL, M.R., and COTTON | land and to grant an easement over it for the running of the and LUSH, L.JJ.) held that there was no foundation for this defendants' trains, to be paid for by the defendants at an proposition. JESØEL, M.R., said that the mortgagee was not amount to be fixed by arbitration, and the defendants were a trostee of the power of sale for the mortgagor, and if he was also to pay the plaintiffs an amount to be fixed by arbientitled to exercise the power, the court could not look into tration in respect of certain junction expenses, station rent, his motives for so doing. If he had a right to sell on the 1st and services rendered in working the defendants' line. By of Jane, and he then said, The mortgagor is a member of an his award, the arbitrator fixed the junction expenses, old county family, and I don't wish to turn him out of his station and other rents, at certain sums, and awarded property, and will not sell it at present, and then on the 1st a lump sum in respect of the other matters of July he said, I have had a quarrel with the mortgagor, in the agreement. A receiver was, in November, 1878, and he has insulted me; I will show him no more mercy, | appointed of the defendants' undertaking, at the instance bat will sell him up at once—if all this was proved, the of debenture stockholders. Subsequently in February, court could not restrain the mortgagee from exercising his 1879, the plaintiffs recovered judgment for a large sum due Power of sale, except on the terms of payment of the to them for tolls and easement rents under the agreement mortgage debt. The court could not look at the mortgagee's aforesaid. By the order appointing the receiver he was motives for exercising his power. Lord Eldon had directed in the usual way to pay all sums necessary for the meter said anything of the kind which Stuart, V.C., supposed working and management of the defendants' line, and to bim to have said. The Vice-Chancellor was entirely mis- pay the balance into court. In July, 1879, the plaintiffs taken, and must have been citing the judgments to which applied by summons in the receivership action for an order be referred from his recollection, witbout looking at the that the receiver should pay them out of funds in his hands reporte. Of course there were some limits to the powers of the amount of their tolls and easement rents for which the mortgagee. He, like a pledgee, must conduct the sale they had recovered judgment. Fry, J., however, held, (Brocklebank v. East London Railway Company L. R. money which they had realized by the sale of the stock and! 12 Ch. D. 839), on a preliminary objection, that the present other articles at Oran. plaintiffs, not being parties to the action, bad no locus The debtors were merchants carrying on business under the standi to make the application, and he accordingly refused | style of Elford & Co. in London, and Albert Elford at Oran. the game, with costs. The plaintiffs had since been unable | Mr. G. Barnet, one of the debtors, went out to Oran and to obtain payment of their rent and tolls, as the East managed the business there while Élford remained and manLondon Company affected to treat them as ordinary creditors, aged the business in London. The Credit Lyonnais was a and contended that the rents and tolls were not part of the joint stock banking company established according to French working expenses of the line. The court had since the law, and having a head office at Lyons, and branches or decision of Fry, J., made an order directing the receiver to agencies at Paris. London, Oran, and elsewhere. The debtor. apply the moneys in his hands in payment of ball-a-year's | Barnet, had business transactions with the Oran branch of interest on the debenture stock. This order was made on an the Credit Lyonnais, who had discounted his bills, and lent affidavit by the receiver, not s ating that he had a surplus him money for the purpose of carrying on his business. In after payment of the current expenses, but that he had a sur. | October last the affairs of the firm became very much emplus after making various payments thereout. Notice had been
barrassed, and the debtors presented a petition for liquidation, given to the receiver not to pay over the sums in his hands a power of attorney having been previously given to Mr. without first paying them their tolls and rent. JESSEL, Mengnier, a public accountant at Oran employed by the M.R., said that the order appointing the receiver was ( Credit Lyonnais, to wind up their affairs there. Steps were quite in proper form, as the title of the debenture stock - | now being taken by the company to realize the property of holders was only to any surplus profits after payment of the debtors at Oran, and it had been agreed between the the working expenses incurred in earning that profit. The parties that the court should decide the preliminary point receiver, as an officer of the court, wos bound to obey the whether this application could be made against the Credit order of the court, and though, strictly speaking, he was Lyonnais in London, the head office of the corporation being only accountable to the parties to the action where a re
at Lyons. ceiver was appointed of a going concern, and where he
The manager of the London branch of the company was to pay the current expenses, it was clearly the duty | stated in his affidavit that all the agencies or branches were of the parties to the action and their advisers to see that
entirely distinct from and independent of each other, and the receiver properly carried out the order of the court.
each agency or branch was only accountable or liable to be In the present case he was of opinion that the parties had
controlled by the head establishment at Lyons. He had been guilty of a dereliction of duty, although it might have
not, nor had the London agency, received or dealt with the been done under a misapprehension of Fry, J.'s, judgment.
assets of the firm at Oran. The Credit Lyonnais was not If the parties had any difficulty in knowing what the re
registered in England. ceiver should do, they could apply for directions. He
Northmore Lawrence, for the trustee, in support of the apagreed that the creditors themselves bad no independent right to apply for payment from the receiver, but he certainly
plication.—The court had jurisdiction to grant an injunction should have tried, if they had applied to him, to find some
against the Credit Lyonnais, which was a corporation carrying way to enable them to get paid. A contrary state of
on a large business in London : Carron Iron Company v. things would really be intolerable. In his opinion, the re
Maclaren (5 H. L. C. 459). A foreign corporation carrying
on business in Eogland, although not incorporated by Engceiver had acted improperly in paying away the interest to tbe debentare stockholders, after he had received notice from the
lish law, might be sued as defendants in an English court in plaintiffs of their claim. It was clear that the rent and tolls
respect of a cause of action which arose within the jurisdicpayable to them formed part of the current expenses of the
tion : Newby v. Van Oppen (20 W. R. 383, L. R. 7 Q. B. line, and this fact must have been known to the receiver.
293). In that case the principal office of the company was The affidavit upon which the order was made was craftily
| at New York. He also cited ord. 9, r. 7, Judicature Act. framed, and it should really have followed the words of the Montagu Cookson, Q.C., and Sidney Woolff, for the Credit order and shown that there was a surplus after payment of the Lyonnais. -The court had no jurisdiction to restrain the working expenses. The result was that the debenture stock. company in regard to an act committed at Oran, and the holders had received moneys which did not properly belong injunction could not be enforced. The Oran branch of the to them, and that there had been a lamentable failure of company could not be restrained upon service of the London justice. As the receiver had offered to give an undertaking branch. In Newby v. Van Oppen the cause of action arose in to pay the tolls and rent accrued since the notice of motion England : Attorney-General y. Alexander (23 W. R. 255, for judgment, he should accept that undertaking and make | L. R, 10 Ex. 20). And it was consistent with justice a declaration that the rent and tolls were properly part of that the application should be made at Oran. To grant the the working expenses of the East London line. On the injunction would be to make the London house responsible other part of the case he thought that as the plaintiffs were for the acts of all the other branches of the company. Supstill legal owners of the land, they were entitled to pos- posing this was an English corporation, the chief office being session unless the defendants were prepared to pay the in London, could it be contended that this court bad jurisdicarrears of the easement rent. The defendants had only an |tion to grant an injunction against a branch of the bank at equity under their agreement, and, before being entitled to Newcastle ? specific performance, they must do equity by paying the Lawrence, in reply.— The only question in The Attorney. purchase-money. As there was a case raised by other de General v. Alexander was whether the Imperial Ottoman tendants that the plaintiffs were disentitled by acts of ac
Bank was liable to income tax. The trastee's rigbt arose quiescence to possession, he should postpone giving the within the jurisdiction, and it was a contempt of this court plaintiffs any judgment for payment or possession until that to interfere with bis possession of the property of the debtors. question was disposed of, which it must be by amendment of If the court granted an injunction against a person here, and the pleadings.-SOLICITORS, Curwood ; Wilson, Bristows, & his agent abroad disobeyed it, he was guilty of a contempt of Carpmael ; Norton, Rose, Norton, & Brewer.
court. The injunction could be enforced by sequestration.
Mr. REGISTRAR BROUGHAM said the trustee asked that the
Credit Lyonnais should be restrained from taking or interferCASES BEFORE THE BANKRUPTCY
ing with the property and effects of the debtorsat Oran which the REGISTRARS.
trustee alleged belonged to bim by virtue of his appointment. (Before Mr. RegistraR BROUGHAM, acting as Chief Judge.) The Credit Lyonnais had its head office in Lyons, and the
branch in London was represented by a manager who knew Nov.18.- Ex parte Shubrook, Re Elford and another (No.2).
nothing whatever of the facts, or of the debtors, or their The Court of Bankruptcy has no jurisdiction, upon the applica- | affairs. It seemed to him that the cases cited by che learned
tion of the trustee, to restrain a French corporation having a counsel in support of the application were against him rather branch establishment in London from dealing with the prop than in his favour. No doubt, if the cause of action arose in erty abroad of debtors in liquidation in this court.
England-if there had been any dealing with the London This was an application by the trustee under liquidation branch-the court would bave restrained the branch in respect proceedings for an order restraining the Credit Lyonnais of which the cause of action arose, but there was no power to from selling, recliving, or in any wise dealing with the stock | grant an injunction against the house at Lyons for an act in-trade, plant, and assets of Albert Elford, of Oran, in done by the branch at Oran upon service of the London Algeria, and that the company should pay to the trustee the branch; and, even if an order had been made for service at