Page images


VOL. XLII., No. 2.

The Solicitors' Journal and Reporter. 24, LINCOLN'S INN FIELDS, W.C.

ESTABLISHED 1853. Capital


LONDON, NOVEMBER 13, 1897. Debentures and Debenture Stock


LOANS MADE THÉREON. Proposal Forms and full information may be had at the Society's Offices.

The Editor cannot undertake to return rejected contributions, and W. OSCAR NASH, F.I.A., Actuary.

copies should be kept of all articles sent by writers who are not on PARTRIDGE & COOPER, the regular staff of the JOURNAL.


[ocr errors]


[ocr errors]


31 35 35 86 36 36 37

29 30 30

[ocr errors]




New ORDERS, &c.



RECENT DECISIONS ON COUNTY COURT COURT PAPERS....................................

WINDING UP NOTICES ........................

CREDITORS' NOTICES........................... 191 & 192, FLEET-STREET, and 1 & 2, CHANCERY-LANE, E.C.



Cases Reported this Week. SUBSCRIBED CAPITAL £1,000,000. PAID-UP $100,000.

In the Solicitors' Journal. In the Weekly Roporter. FIDELITY GUARANTEES OF ALL KINDS.

An Arbitration between Palmer & Co.

British Natural Premium Provident and Hosken, Trevithick, Polking

Association (Limited) v. Bywater 23 BONDS. MORTGAGE, DEBENTURE, LICENSE, AND CONTINGENCY horn, & Co. (Lim.), Re

32 Chilcott (Deceased), In the Goods of... 32 INSURANCE. TRUSTEESHIPS FOR DEBENTURE-HOLDERS, &c.

Clarke v. Pountney and Others

34 Gordon, In re. Ex parte Navalchand 31 Grant v. Hillam.. 35 Hill v. Rowlands

26 Heywood, Re. Heywood v. Heywood 33 Reg.v. Burrows and Another (Justices). Maclurcan v. Maclurcan,

32 HEAD OFFICE: 49, Chancery-lane, W.C. | CITY OFFICE : 56, Moorgate-street, E.C


Ex parte Wilson
Madeley v. Greenwood
34 Ross's Charity, In re

27 Pollock v. Garle.

32 Small and Others v. United Kingdom IMPORTANT TO SOLICITORS

Shaw v. Lutman

34 Mutual Marine Insurance AssociaStern v. Tegner

31 tion,
Williams (Appellant) v. Llandudno Smith v. Smith

District Council (Respondents) 34 Wood v. Mayor of Widnes

30 To see that the Insurance Covenants include a policy covering the risk of

Suitable clauses, settled by Counsel, can be obtained on application to


THE BUSINESS under the Bankruptcy and Companies (Wind24, MOORGATE STREET, LONDON, E.C.

ing-up) Acts will for the future be transacted by Mr. Justice Mortgages Guaranteed on Licensed Properties promptly, without | WRIGHT,

special valuation and at low rates. LEGAL AND GENERAL LIFE ASSURANCE terms of the above announcement, the arrangement is not

THERE IS some reason to suppose that, notwithstanding the SOCIETY.

likely to be permanent. The circuit duties of a judge of the ESTABLISHED OVER HALF A CENTURY.

Queen's Bench Division render his appointment as the

windingup judge very undesirable. Why should not the business be 10, FLEET STREET, LONDON.

distributed among the judges of the Chancery Division as in the

old days, or, at all events, vested in one of the judges of that FREE,

division, who is always accessible and thoroughly familiar with SIMPLE,

the work ?





WE ARE requested, for the convenience of the profession, to repeat the announcement we made last week, that the practice of entering judgment in default of defence without order, under ord. 27, r. 2, is not to be considered as in any way interferec with by ord. 30, r. 1 (6).






It is well settled that a company incorporated under the SECURE.

Companies Acts cannot, by any provisions in the memoran

dum or articles of association, escape from the fundamental FUNDS £3,000,000. INCOME


condition that every share must be issued subject to the payYEARLY BUSINESS £1,000,000. BUSINESS IN FORCE £11,000,000. ment of the full nominal value either in cash or by other means

protected by a duly registered contract. The final development

was given to this doctrine in Welton v. Saffery (45 W. R. 508), The Right Hon. Lord HALSBURY (Lord High Chancellor of England). The Hon. Mr. Justice KEKEWICH.

where the House of Lords held that the full amount was payThe Right Hon. Sir JAMES PARKER DEANE, Q.C., D.C.L.

able, even though there were no claims of creditors in question, WILLIAM WILLIAMS, Esq. RICHARD PENNINGTON, Esq.

and the calls were made solely for the adjustment of the rights

of contributories inter se. A similar principle has now been Bacon, His Honour Judge.

Masterman, Henry Chauncy, Esq.
Davey, The Right Hon. Lord.
Mathew, The Hon. Mr. Justice.

applied by BYRNE, J., in deciding that a company cannot by its Deane, The Right Hon. Sir James Parker, Meek, A. Grant, Esq. (Devizes).

articles deprive a contributory of the right to petition for a Q.C., D.C.L.

Mellor, The Right Hon. John W., Q.C. Eilis, Edmund Henry, Esq.


winding up of the company conferred by section 82 of the Finch, Arthur J., Esq. Mills, Richard, Esq.

Companies Act, 1862. In Re Peveril Gold Mines (Limited) the Frere, Geo. Edgar, Esq.

Morrell, Frederic P., Esq.(Oxford).
Garth, The Right Hon.
Sir Richard, Q.C. Pennington, Richard, Esq.

articles of the company provided that no winding-up petition Harrison, Chas., Esq., M.P.


Edward Lee, Esq. Healey, C. E. H. Chadwyck, Esq., Q.C. Saltwell, Wm.Henry, Esq.

should be presented by a momber unless with the consent in Johnson, Charles P., Esq. Williams, C. Reynolds, Esq.

writing of not less than two-thirds of the board of directors, or Kekewich, The Hon. Mr. Justice.

Williams, Romer, Esq. Ludlow, The Right Hon. Lord. Williams, William, Esq. in pursuance of a resolution passed by a majority at a general


meeting, or unless the petitioner or petitioners should hold not political job? Is not the reputation of the Bench of infinitely less than one-fifth of the issued capital of the company upon more consequence than the reputation of the appointor ? which all calls should have been paid. An attempt was made to support this provision upon the familiar ground that the articles form a contract between the members and the company,

AN INTERESTING point arising under the Local Government and that a member was prohibited by his contract from bringing Act, 1894, was decided by a Divisional Court (Wright and a petition unless the requirements of the article had been com- KENNEDY, JJ.) in the case of Lewis v. Poole (ante p. 14). The plied with. But it seems probable that the contract is only question was as to the right of custody of the tithe apporvalid in so far as it deals with matters which the statutes tionment and map of a rural parish. The Tithe Act, 1846 (6, & have left open, and that members cannot by a provision in the 7 Will. 4, c. 71), 88. 63, 64, provides for the annexation of the articles be deprived of a right which has been expressly con- map to the instrument of apportionment, and enacts that one ferred upon them by the Legislature. Such rights appear to be copy of the instrument shall be deposited with the incumbent as much a part of the constitution of the company as the liability and church wardens of the parish, and shall be kept by them to pay the nominal value of shares. Looking at the matter from with the public books, writings, and papers of the parish.” a practical point of view, this result is clearly required in the The Tithe Act of 1860, s. 28, enacts that when a person other interest of investors. . It is rare, as BYRNE, J., pointed out, that than the persons legally entitled to possession of these documents a person who is applying for sháros in a company first peruses is actually in possession of them, two justices, upon the applicathe articles, and it would be an extremely unfortunate state of tion of any persons interested in the lands or rent-charge, may things if the safeguards which the Companies Acts have provided order the documents to be removed from their existing custody could be dispensed with by provisions inserted at the instance and to be deposited in such other custody as the justices, having of the promoters. Notwithstanding the above clause, therefore, reference to their security and due preservation, and to the cona petition presented by a shareholder in the company was venience of the parties interested, think fit. This being the allowed to be proceeded with,

state of the law when the Local Government Act, 1894, came into operation, that Act, by section 17 (8), provided that certain

church registers and all other documents containing entries LORD HALSBURY's usual good-humoured equanimity appears relating to the affairs of the church, except “documents directed to have been considerably perturbed by thô recent storm of by law to be kept with the public books, writings, and papers criticism. Veiling his remarks under the guise of eulogy of of the parish,” should remain as provided by the existing law, the late Master of the Rolls, he said, at the Lord Mayor's and that all other public books, &c., of the parish, and all banquet, that Viscount ESHER was a great lawyer, and added : documents directed by law to be kept therewith, should either " In saying that I am aware that I am expressing a different remain in their existing custody or “be deposited in such opinion from that of those gentlemen who are good enough to custody as the parish council may direct”; and the county arrogate to themselves all wisdom and a perfect knowledge of council is to determine any difference as to custody or access. everything.” But, so far as we know, this is the opinion which In the recent case the tithe apportionment and map were in the was expressed by the organs of public opinion upon Lord custody of the incumbent in the year 1895; in that year the parish Eshe's retirement. We are not aware of any public comments council resolved that they should be placed in their own custody. which were inconsistent with this view. Who, then, can the The incumbent refused to give them up, and on the application “gentlemen" be who are referred to in these very scorching of the parish council the county council made an order (finally terms ? Surely not any public commentator on Lord ESHER's drawn up and sealed in February, 1897) that they should be career ? But Lord HALSBURY proceeded to point his moral by deposited in such custody as the parish council shčuld direct. developing the crowning merit of the late Master of the Rolls. The incumbent still declining to part with them, the chairman “ Besides being a great lawyer, he was a high-minded English of the parish council applied, under section 28 of the Act of 1860, gentleman. He cared nothing whatever for the momentary for an order that the documents be deposited in the custody of opinion. He did what he thought was right, and cared not the parish council. The justices declined jurisdiction.

Upon for commentary or blame if, in his view, he was doing what the appeal, the court had little difficulty in holding that the was right and just, still loss if he thought that commentary parish council were entitled to the custody; it would have been was tainted with the poisoned breath of political animosity, difficult to hold otherwise having regard to the language of the Now, we do not recall any instance in which Lord ESHER suf- sections of the Acts of 1846 and 1894 above referred to. The fered at all from public commentary or blame, still loss from further question arose as to whether the justices had juris“the poisoned breath of political animosity." He was pre- diction to make the order under section 28 of the Act of eminently a shrewd man of the world, not in the least likely 1860. That section clearly contemplates a judicial act on the to go out of his way to raise up enemies. These observations part of the justices, and in the present case they were merely must be taken to have indirect reference to the action of an asked to make a ministerial order to give effect to the decision other personage, and it is worth while to consider whether of the county council. The court, however, held that the effect they will bear the test of examination. According to the Lord of the Local Government Act, 1894, was to give the justices Chancellor, the characteristic of "a high-minded English jurisdiction to make such a ministerial order. This decision is gentleman ” is that he holds the test of the rightness and in accordance with good sense; were the law otherwise it is justice of an act to be his own view that it is right and just. difficult to imagino by what machinery effect could be given to If he thinks that what he is doing is right and just he may an order which a county council is expressly empowered to make be altogether callous to the opinion of others. That was the by section 17 (8) of the Local Government Act, 1894. opinion of DIOGENES, but is it not rather odd doctrine to be laid down by the Keeper of the Queen's Conscience ? Suppose "a high-minded English gentleman” thinks it “right and AT THE Worship-street police-court this week a married just " that he should marry his deceased wife's sister. He woman applied for, and obtained, an order against her husband deems the existing state of the law wrong and unjust. He for maintenance under the Summary Jurisdiction (Married may entrench himself in his sense of rectitude, and personally Women) Act, 1895, on the ground of his desertion. The facts bear with equanimity the reflections of his acquaintances. But were peculiar, and raised a somewhat interesting point of law. is he justified in paying no regard to the social stigma which It was proved that the woman had some time previously left her will be inflicted on the woman he proposes to marry, and on husband of her own accord, and had taken out a summons for the offspring of the union ? So, we may ask, when a judicial maintenance against him under the same Act, on the ground appointment is proposed to be made which the appointor may that he had been guilty of persistent cruelty towards her, and consider" right and just," but which he knows will not be so by such cruelty had caused her to leave him. In these proceed. considered by the legal profession and the public, is the ap- ings, however, she was unsuccessful, as the magistrato found pointor justified in ignoring the consideration of the injury to that the charge of cruelty had not been proved. The woman the reputation of the Bench likely to be occasioned by an then offered to return to her husband, but he refused to receive appointment which, to the world at large, will appear to be a her back, hence the second summons. The question was

[ocr errors]

whether, under such circumstances, the refusal of a husband to 19 of the Act it is clearly the right of the party who in good resume cohabitation amounts in law to desertion. The magis- faith wishes to have a case stated to obtain, if he can, an order trate was of opinion that such refusal did constitute desertion, of the court overruling the refusal of the arbitrator, and this is but offered to state a case for the decision of the High Court. a right which the arbitrator is bound to respect. The remedy Unfortunately, however, it seems to be improbable that the of the aggrieved party consequently depends on section 11, which parties will carry the matter further. It is not easy to reconcile enables the court, in the event of an arbitrator misconducting the magistrate's decision with cases decided by the High Court. himself, to set aside the award, and on section 10, which enables In Pope v. Pope (36 W. R. 125, 20 Q. B. D. 76) the parties were the court to remit the reward to the reconsideration of the arbitraliving apart by mutual consent, when the husband, having ceased tor. Misconduct in an arbitrator by no means implies moral blame. to pay the agreed weekly sum, was proceeded against for main. It includes any breach of his duty to conduct the proceedings in tenance under the Married Women (Maintenance in Case of a proper manner. An arbitrator, for instance, is guilty of Desertion) Act, 1886. It was held, however, that there was no misconduct if he hears, or receives evidence from, one party in evidence of desertion, as desertion “implies that the parties the absence of another. Hence there is misconduct when an are living together at the time when the desertion takes arbitrator deprives a party of his right to apply to the court to place.” In the later case of Reg. v. Leresche (40 W. R. 2; have a case stated, and accordingly the court may either set the 1891, 2 Q. B. 418) the circumstances were similar; but in this award aside or may act under the more general power of section case, after the husband had refused to continue the payments 10, and remit the award with a direction that à case is to be required by the separation agreement, the wife had offered to stated. In Re Palmer & Co. and Hosken & Co. the Court of resume cohabitation. Nevertheless the Court of Appeal held Appeal upheld the order of Day, J., adopting the latter that there was no desertion, as desertion implies an active with alternative. drawal from a cohabitation that exists, while here cohabitation had ceased by mutual consent, and that the refusal of the

THE DECISION of the Divisional Court in Gallagher v. Rudd husband to return to cohabitation could not amount to construc. tive desertion. The court also cited with approval the judg- which there seems to have been a good deal of misunderstanding,

(ante, p. 15) is of considerable importance as settling a point on ment in Fitzgerald v. Fitzgerald (L. R. 1 P. & D. 694), in which although really the point appears to be one of no difficulty. The it was said that "desertion implies an active withdrawal from a appellant was the manager of a theatre at Stockton, and he had cohabitation that exists.

If the state of cohabitation been convicted by the justices of the borough of selling liquor has already ceased to exist, whether by the adverse act of bus, during prohibited hours—i.e., after 11 p.m., shortly after the band or wife, or even by mutual consent of both, 'desertion' theatre bad closed. From this conviction he appealed to the High becomes from that moment impossible to either-at least, until Court, but failed in convincing the judges that there was anytheir common life and home have been resumed.” These two thing improper in his conviction. The law seems very clear. last-mentioned cases were recently commented upon by the

two The managers of a properly-licensed theatre do not require a judges of the Probate, &c., Division, sitting as


Divi- licence from justices to sell intoxicating liquors, but they do sional Court, in Bradshaw v. Bradshaw (45 W. R. 142; 1897, ?: require an excise licence so to do under 5 & 6 Will. 4, c. 39, s. 7. 24). Both judges agreed that cohabitation may possibly exist Now, section 3 of the Licensing Act, 1874, provides that all although the parties do not live under the same roof, as in the premises in which intoxicating liquors are sold by retail shall be not uncommon case of married domestic servants; but they also closed” at certain times which are therein stated. Section 9 agreed that there cannot be desertion of a wife by a husband then goes on to provide that “any person who, during the unless an existing state of cohabitation is broken by some act time at which premises for the sale of intoxicating liquors are of desertion. Applying these principles to the recent case, we directed to be closed by or in pursuance of this Act, sells or find that the wife herself deliberately put an end to the state of exposes for sale in such premises” any liquor, shall be liable to a cohabitation, left her husband, and swore that she had been penalty. It will be noticed that the Act expressly says "all compelled to leave him by his cruelty. The court which heard premises,” and there seems little to support the argument that her first charge found, in effect, that she had left him without those words should be read as equivalent to “all premises sufficient cause. It must be assumed, therefore, that the woman licensed by justices.” The question, moreover, seems to have had wrongfully put an end to the previously-existing cohabita- been already decided by the High Court in Martin v. Barker tion, and, on the strength of the authorities above referred to, (29 W. R. 789). In that case the appellant held merely an it is submitted that the husband's subsequent refusal to resume excise licence to sell spirits to be consumed off the premises. Ho cohabitation cannot in law amount to desertion, and that the was, however, convicted of selling such liquor during prohibited magistrate should have refused the woman's application.

hours, and on appeal this conviction was upheld. HAWKINS, J.,

said, "It has been argued that section 3 only applies to premises AN IMPORTANT question as to the procedure to be adopted licensed by justices for the sale of intoxicating liquors, but when an arbitrator refuses to state a case for the opinion of the there is nothing in the Act of 1874 which indicates this conclucourt has been decided by the Court of Appeal in Re Palmer 8. sion. We have been referred to the Act of 1872, but by section Co. and Hosken & Co. By section 19 of the Arbitration Act, 73 (2) of that Act it was clearly contemplated that there might 1889, it is provided that an arbitrator may at any stage of the be premises used for the sale of intoxicating liquors for which proceedings under a reference, and shall, if so directed by the a licence by justices was not required. This very section court or å judge, state in the form of a special case for the recognizes å sale of intoxicating liquors in, pursuance of an opinion of the court any question of law arising in the course excise licence, not only wholesale but retail.” of the reference. The operation of this provision is clear if the arbitrator, upon request being made, consents to state a case, and it is also clear if, although he himself declines to state a The articles on The Compulsory Summons for Directions" which a case, he adjourns the hearing of the reference for the purpose recently appeared in this journal have been revised and added to by of enabling application to be made to the court. But no expross the writer, and are now published by Messrs. Sweet & Maxwell as a provision is made for the case where the arbitrator refuses to separate pamphlet. It constitutes a practical treatise on the new state a case and also refuses to adjourn the hearing. Under order 30, bringing together the numerous points of difficulty arising such circumstances the reference must proceed, and the award thereon, side by side with suggestions for surmounting them. will be made without the party whose application for a case has Among the numerous legal diaries which are before the profession been refused having any opportunity of securing the interven- Sweet & Maxwell's Diary for Lawyers, 1898, has several distinctive tion of the court. In the case in question a dispute had arisen features. It contains a "Courts Directory,” giving the names of the with respect to short delivery of a cargo of wheat, and the directors officials in the Royal Courts and shewing the position of their of the Liverpool Corn Trade Association, to whom an appeal respective rooms; elaborate time-tables in the Supreme Court, bankhad been made against the award of the arbitrators, refused to out of the jurisdiction, and gazetteers shewing country county court

ruptcy, and the county courts, and for appearance on writs served state a case at the request of the buyers of the cargo with refer- districts and bankruptcy county court districts, with a variety of ence to the liability of the sellers to make good the deficiency; other matters. There are some very convenient tables of conveyand also refused to adjourn the proceedings. But under section ancers' stamp duties, edited by Mr. F. Stroud.


[ocr errors]


deemed to be void." If the above-mentioned decisions are JUDICIAL REPEAL OF THE SETTLED LAND ACTS. correct, the subsequent instrument contained a provision preII.

venting the tenant for life from exercising his powers under the It should be observed that the decision in Re Tibbits' Estates, of the compound settlement; non-constat that he will obtain the

Act unless he obtained an order of the court appointing trustees that after the execution of the disentailing assurance and resettlement the sale had to be made under the powers conferred interval of time after the execution of the jointure deed and

order, and even if eventually he obtains it, there might be an by the compound settlement formed by these instruments and before the order is obtained, during which he would be unable to the original settlement, is not only wrong if the above reason; exercise his statutory powers. It appears, therefore, that, to ing is correct, but it is in express contradiction to Re Knowles the extent to which the execution of the subsequent instrument Settled Estates (27 Ch. D. 707), in which caso land was settled created a compound settlement, it put the tenant for life in a on A. for life, with remainder to her children by B.

position inconsistent with his exercising the statutory powers should appoint; B. appointed to C., a daughter, in fee; c. under the original settlement, and that it must therefore to that settled her remainder on her marriage, and it was held by extent be void. PEARSON, J., that the original settlement was the settlement

Notwithstanding the reasons for believing that the above-menunder the Act.

tioned decisions are incorrect, it will be necessary for the pracThat part of the decision in Re Tibbits' Estates which declared titioner to act as if they were correct, and the following points, that the trustees under the original settlement were, after the charges created by Mrs. TIBBITs on her life estate, on her some of which have been before mentioned, should

be attended to. several marriages, incompetent to give discharges for purchase

(1) In every settlement there should be inserted, either an moneys, so that trustees of the compound settlement, formed express power of sale, or a provision that “The said A. and B., of all these instruments, had to be appointed for that purpose,

or the survivor of them, or other the trustees or trustee of these turned on the construction of the Settled Land Act, 1890, 8. 4 presents, shall be the trustees or trustee of these prosents, and (1), which provides that:

of every compound settlement consisting of these presents and

any other instrument or instruments for the purpose of the Set“ Every instrument whereby a tenant for life, in consideration of tled Land Acts, 1882 to 1890." If the latter plan is adopted, it marriage, or as part or by way of any family arraugement, not being a security for payment of money advanced, makes an assignment of or

may be safer to insert in every instrument, which together with creates a charge upon his estate or interest under the settlement, is to be the original settlement may form a compound settlement, a deemed one of the instruments creating the settlement, and not an instru- declaration that “the persons or person who shall for the time me ut vesting in any person, any right as assignee for,value within the being be the trustees

or trustee for the purposes of the Settled meaning or operation of section fifty of the Act of 1882.”

Land Acts, 1882 to 1890, of the recited indenture of, &c. (or The object of this provision is obvious; it is to render it will—i.e., the original settlement), shall be the trustees or trustee unnecessary for a person entitled to pin money, &c., charged on for the like purposes of the compound settlement formed by the the life interest of the tenant for life to concur in the exercise of recited indenture of, &c. (or will) and these his statutory powers : 800 Settled Land Act, 1882, s. 50. There (2) Every instrument which together with the original is, perhaps, some little difficulty in the construction of the settlement may constitute a compound settlement should be section, depending on the meaning of the word "settlement.” abstracted, except in cases where either of the schemes menIt is clear that where the Act speaks of the tenant for life tioned in the last preceding paragraph has been adopted. assigning or charging “bis estate or interest under the settle

(3) If a compound settlement exists, the vendor's solicitor ment,” by " the settlement” is meant a settlement existing at should either procure trustees of that settlement to be appointed, the date of the assignment or charge; and where, as part of or should be prepared to advise his client to go to the Court of the same sentence, it is said that tho instrument by which the Appeal on a vendor and purchaser summons. Of course this assignment or charge is made “is to be deemed one of the will be unnecessary if the tenant for life is created under the instruments creating the settlement," the words " the settle- last of the instruments creating the compound settlement, and ment” must bear the same meaning in both places—in other the sale is made subject to the provisions of the earlier instruwords, the subsequent instrument is to be deemed to be one of monts, or with the concurrence of the beneficiary under those the instruments by which the original settlement was created, instruments, or, in cases where the provisions of the Convoyand therefore the trustees of that settlement remain trustees for ancing Act, 1881, s. 5, are applicable. the purposes of the Settled Land Acts after the execution of the

(4) On the investigation of the title, the purchaser's solicitor charge.

should make inquiries whether any instrument creating a comThere is another, and perhaps a more potent, argument pound settlement has been executed. If he meets with a refusal against the decisions in Re Meade's Settled Estates and Re Tibbits' to answer his inquiries (seo Ford & Hill, 10 Ch. D. 365), he may Estates. In each case the decision was to the effect that an reasonably point out the serious consequences that may

follow instrument executed while there existed a tenant for life, and if the vendor, or his solicitor, knowingly conceals the fact that trustees for the purposes of the Settled Land Act, of a settlement, such instrument has been executed (see 22 & 23 Vict. c. 35, s. forming together with the original settlement a compound 24). In those very dangerous casos, above referred to, where battlement, prevented the exercise by the tenant for life of the a small part of a large property has been sold off, the vendor powers conferred on him by the Act as tenant for life under the will on a subsequent sale probably be unable, even if willing, original settlement. Now, the Settled Land Act, 1882, provides to answer the inquiries, but in these cases it will often happen by section 51 (1), that

that the truth will appear on inquiries made in the neighbourIf in a settlement, will, assurance, or other instrument executed or hood. made before or after, or partly before and partly after, the commencement of this Act, a provision is inserted purporting or attempting,

by terms a willing

purchaser may complete, without requiring the

(5) There remains to be considered the question upon what ercise any power under this Act, or attempting or tending or intended, by a appointment of trustees of the compound settlement, or requirlimitation, gift, or disposition over of settled land, or by a limitation, gift, ing the whole or part, as the case may be, of the purchase or disposition of other real or any personal property, or by the imposition money to be paid into court under the Conveyancing Act, 1881, of any condition, or by forfeiture, or in any other manner whatever, to prohibit or prevent him from exercising, or to induce him to abstain from

s. 5, for the purpose of satisfying pin money charged on the life exercising, or to put him into a position inconsistent with his exercising, estate of the vendor, or jointures or portions charged under the any power under this Act, that provision, as far as it purports or attempts powers of the settlement. It must be remembered that the or tends, or is intended to have, or would or might have, the operation purchaser's solicitor may, if the plan adopted fails to protect aforesaid, eball be deemed to be yoid.

the purchaser, be liable to an action for negligence unless he This provision may be stated concisely as follows: "If explains the risk to his client and receives from him instructions in any instrument å provision is inserted attempting or to complete notwithstanding the risk, and retains evidence that tendiog in any manner to prevent the tenant for life from this has been done. Probably the safest plan is for the exercising, or to put him in a position inconsistent with his solicitor to obtain from the client a letter in which the latter exercising, any power under this Act, that provision, so far as states in his own words what he understands the risk to be, and it attempts or tends or might have that operation, shall be directs the solicitor to complete.

It must be remembered that any indemnity given by way of In Wood v. Middleton (45 W. R. 184 ; 1897, 1 Ch. 151) covenant only may in the event be insufficient, for although the the power of a county court to order service of process covenantee may at the time when he enters into the covenant out of the jurisdiction was involved. There the plaintiff be ricb, his estate may be insolvent at the time when the claimed a legacy of £100 from the defendant, who was covenant is broken, which will probably be after his death. trustee of a will, The defendant was described as resi

Assuming that the purchaser is willing to rely on the dent in Scotland, and consequently out of the jurisdiction of covenants by the vendor implied by his conveying as " beneficial an English county court. Ultimately, on its being discovered owner," the usual proviso restricting his liability to the acts of that the testator's estate exceeded £500 (the pecuniary limit, in himself and persons claiming under him should not be inserted, equity cases, of county court jurisdiction), the county court unless he is himself the settlor (800 1 K. & E. 411). If he is the judge made an order transferring the action to the High Court. settlor, the jointress and portioners are persons claiming under Before, however, the making of this order, the registrar of the him, and, therefore, the covenant restricted by the proviso county court, on the strength of an affidavit deposing to the fact of extends to their claims; but if he is not the settlor, they do not the defendant's residence in Scotland, gavo leave to serve the claim under him, and the covenant restricted by the proviso does defendant there, which was accordingly done. It was held that not extend to their claims, and will be useless.

such service was authorized by ord. 51, r. 23, of the County Court Probably, notwithstanding the risks attending an indemnity Rules, 1889, and that, though such rule was wider than the given by way of covenant only, the plan of taking a convey corresponding High Court rule, it was, nevertheless, a rule ance from the vendor “as beneficial owner” without the proviso which might lawfully be made by the proper authorities under restricting his liability will often be adopted, but, for the section 164 of the County Courts Act, 1888, and that therefore reasons above stated, it is somewhat dangerous, especially if the no objection to the jurisdiction could be raised in the county purchaser intends to build on the land.

court, but that, on the transfer of the action to the High Court, Where the vendor, or one of his predecessors in title, pur- the defendant was not debarred from urging the same objection chased for value from a tenant for life, and paid the purchase- there. monoy to the trustees of the settlement, and it can be shown One case, affecting the admiralty jurisdiction of the county that a compound settlement existed at the date of the sale, the courts, must next be referred to-namely, Wells v. The Owners only safe plan will be to reject the title.

of the Gas Float Whitton," No. 2 (1897, A. O. 337). There the plaintiff claimed a salvage award in a county court having

admiralty jurisdiction for services rendered to a gas float adrift RECENT DECISIONS ON COUNTY COURT JURIS

in the tidal waters of the Upper Humber. The structure was

of iron, boat-shaped, and contained gas which supplied the DICTION AND PRACTICE.

light raised above it. It was held by the House of Lords, Cases of more or less importance to suitors and the profession affirming the decision of the Court of Appeal (44 W. R. 263), affecting the county courts have, during the legal year just that the gas float was not a "ship” or å "wreck” within the expired, been determined in the Supreme Court. To these meaning of sections 2 and 458 of the Merchant Shipping Act reference must, in accordance with an established custom of this 1854 (17 & 18 Vict. c. 104), and could not, therefore, be the subjournal, now be made. It will be found that the decisions ject of salvage. In this connection it should be mentioned that comprised in this article are somewhat less numerous than the subjects or objects in respect of the saving of which the usual. This, however, is clearly not attributable to any falling High Court of Admiralty has jurisdiction by the common law off in the business in the county courts, which is still maintained are confined to a ship, her apparel, her cargo (including flotsam, at a very high figure; but it is, we believe, due, in no small jetsam, and lagan, or the wreck of them), and to freight in measure, to the more accurate knowledge now possessed by the danger and saved by reason of the saving of the ship or cargo; profession and suitors of county court jurisdiction and practice, and that the subjects or objects of salvage are not onlarged by by reason of which fower mistakes are now made than hereto- the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), or by fore in the conduct of litigation in the county courts. Such a any of the preceding statutes, or by the County Courts Admirdegree of practical knowledge as now obtains amongst the alty Jurisdiction Act, 1868 (31 & 32 Vict. c. 71), with the sole profession and public on these subjects is, after all, but the exception that the saving of lives of persons in danger from necessary outcome of a wider experience derived from constant being on board ship, have been added to the list of such sub recourse to these inferior tribunals which are so rapidly develop-jects or objects. ing into courts of first instance, not merely for small debt cases, A case affecting the jurisdiction of the county courts under but for causes fit for trial in the High Court itself.

the Rivers Pollution Provention Act, 1876 (39 & 40 Vict. c. 75) The powers and jurisdiction of the county courts have occasioned next demands notice-namely, River Ribble, Joint Committee of Beveral decisions to which it is desirable, in the first instance, v. Croston Urban District Council (45 W. R. 348; 1897, 1 Q. B. to call attention. In Reg. v. Turner (45 W. R. 316; 1897, 1 251). There, in 1893, an order was made in a county court, Q. B. 445) it was held that, under section 74 of the County under the Rivers Pollution Act, 1876 (39 & 40 Vict. c. 75), by Courts Act, 1888 (51 & 52 Vict. c. 43)—whereby an action may consent between the plaintiffs and the defendants, restraining the be commenced, by leave of the judge, against a defendant latter from permitting sowage to flow into a river, and ordering resident out of the district, if the cause of action arose wholly or the defendants to construct certain sewage works. In 1896 the in part within the district—the judge is not bound, having satis- defendants, not having complied with this order, proceedings fied himself as to the bare facts, to allow a summons to be were taken for the recovery of penalties. The defendants issued. On the contrary, the judge has discretion to refuse desired to show that the river in question was a tidal river, and leave, though he be satisfied that the cause of action was such that therefore there was no jurisdiction to make the order. It as to give him power to grant the summons if he had thought was, however, held that, the order having been made by consent, fit to do so. Moreover, as was pointed out by WRIGHT, J., in the and being good on the face of it, the defendants were not enticase under consideration, the judge is expressly obliged by the tled to show, in answer to the claim for penalties, that the river County Court Rules, 1889, to exercise a discretion in each case, was one as to which a valid restraining order could not be made, it being provided by ord. 5, r. 9a, that “the judge or registrar and that, if there was any mistake, proceedings should be taken shall duly consider the facts disclosed by the affidavit and to set the order aside. exercise his discretion in each case as to the grant or refusal of Before quitting the cases now under consideration, it may be leave, in accordance with the circumstances." That the language as well to refer to a decision affecting the jurisdiction of a of thé enactment above referred to, under which the jurisdiction county court over an action brought under section 11 of the is exercised, is permissive seems clear from previous cases where Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), for the it was held that similar words had not necessarily a compulsory recovery of costs and expenses incurred in respect of a nuisance force, but were quite susceptible of a discretionary sense: seo order. In Hammersmith Vestry v. Lowenfeld (45 W. R. 60) it Julius v. The Bishop of Oxford (28 W. R. 726, 5 App. Cas. 214) was held that such an action is subject to the limitation of time and Rog. v. The York and North Midland Railway Co. (1 El. & imposed by section 11 of the Summary Jurisdiction Act, 1848 Bl. 858).

(11 & 12 Vict. c. 43), in respect of making complaints and laying

« PreviousContinue »