« PreviousContinue »
refuse such application on the ground that the action is for matters of pass to him. But Jessel, M.R., said that he agreed with the registrar that cure account or intricate auestions of law only, or is of such a nature as the transaction amounted to a fraudulent preference, even if the property in to present no special question of fact upon which the assistance of a
the bills had passed to the creditor before the act of bankruptcy. The handjury would be desirable."
MAURICE H. LEVIRTON.
ing over of the bills after the creditor had gone away could not be said to 14, Devonshire-square, Bishopsgate-street, Feb. 27.
have been the consequence of bona fide pressure on the part of the creditor. It was clearly a voluntary act on the part of the bankrupt. It would be absurd to call that which was done on the 17th of February
pressure at all. The threat of proceedings against a man who was going to CROWN WINDFALLS.
stop payment in a week could not be called pressure. Of course the case (To the Editor of the Solicitors' Journal.]
would be entirely different if the creditor had known nothing about the state of
the debtor's affaire. The pressure on the 14th of February could not be taken Sir, A parliamentary return just issued shows that during the year into account, because it was plain that it had produced no effect. BAGGALLAY, 1880 the total amount received by the Treasury Solicitor on behalf of L.J., thought there was as clear a fraudulent preference as could possibly be the Crown in respect to persons dying without known next of kin was conceived." LINDLEY, L.J., said that the first point was enough to dispose of $56,448 13s. 11d.
the case, but he was inclined to think that the view of the Master of the Rolls This return is an annual one, and might easily be made au invaluable was right as to the fraudulent preference. It was quite clear the transaction document to the public-namely, by adding the names, addresses, and fell within the first part of section 92, and his lordship felt much doubt descriptions of the intestates, and the amount of each "windfall.”
whether, baving regard to the intimation which the creditor had received of Since the passing of the Treasury Solicitor Act, 1876, under which the state of the bankrupt's affairs, he was, within the meaning of the proviso this return is made, the receipts have been as follows:-1877,
at the end of the section, “a purchaser or payee in good faith and for valu
able consideration." £127,876 19s. 11d. ; 1878, $139,769 9s. 3d. ; 1879, $140,879 3s. 5d.
Another point arose as to evidence. The trustee had given the creditor The particulars above suggested would occupy but little space, as the
notice tbat on the hearing of the application he should use as evidence a decases average annually between thirty and forty only.
position of the creditor, which had been taken on a previous occasion and 1, Great College-street, Westminster, Feb, 24. EDWARD PRESTON.
was on the file of the proceedings in the bankruptcy, and had served the creditor with a copy of the deposition. The objection was raised in the Court of Appeal that this deposition could not be used as evidence on this
occasion, the trustee having given notice to cross-examine the creditor on an CASES OF THE WEEK.
affidavit which he had made on the present application, and not baving crossexamined him. The court held that the deposition could properly be used
against the creditor as an admission made by him, and said that, if he wigbed PRACTICE-DEMORRER-A LLEGATION OF SPECIFIC GROUNDS-ORD. 28, RR. an opportunity of giving an explanation, his counsel might have applied for 1, 2.-In a case of Bidder v. McLean, before the Court of Appeal on the 25th | leave to call him as a witness in chief. ult., the question was raised whether under the present practice it is essential There was also a question as to costs of copies of the deposition. It was that a demurrer should in all cases tate specifically the grounds of urged that it was in accordance with the practice that a copy of the deposi. demurrer. The action was brought to obtain a declaration that certain stock of tion should be served on the other side. JESSEL, M.R., said that he was very a railway company was held by the defendants upon certain trusts. One of loth to recognize any such practice. Notice of a deposition which was already the defendants demurred to the statement of claim, "on the ground that the on the file ought to be sufficient. The party to whom the notice was given facts alleged therein do not show any cause of action to which effect can be could then go and look at the file, and take such extracts as were necessary. given by the court as against the defendant, and on other grounds sufficient in The court ought not to sanction & practice of serving copies of long Jaw to sustain the demurrer.” The plaintiff took out a summons, asking to examinations. The costs of the copy served on the creditor would, therefore, have the demurrer set aside, “on the ground that it does not state specifically not be allowed. Under the particules circumstances of the case his lordsbip whether it is to the whole, or to a part, and to what part of the statement of thought that the costs of the copies of the deposition supplied for the use of claim, and that it does not state any ground in law for the demorrer, and that counsel should be allowed. But it must not be supposed that the costs of such no ground of demurrer, or only a frivolous ground of demurrer, is stated.” It copies would in all cases be allowed; the court might think fit to allow was urged that under rule 2 of order 28 it is now necessary in all cases to only the costs of taking extracts.-SOLICITORS, Hamlin & Grammer , Munns slate specifically the grounds of demorrer. The court (JESSEL, M.R., and & Longden. BAGGALLAY and LINDLEY, L.JJ.), however, held that no such absolute general rulo can be laid down, but ibat it must depend upon ihe nature of each case whether the demurrer should state specific grounds. And in the present case
BANKRUPTCY-TRADER_VOLUNTARY SETTLEMENT—INTENT TO DELAY they held that no more specifio grounds of demurrer could have been stated,
CREDITORS-BANKRUPTCY Act, 1869, s. 91-13 Eliz. C. 5-TRUSTEESand they accordingly refused the application.-SOLICITORS, Beale, Marigold, &
Costs.- In a case of Ex parte Russell, before the Court of Appeal on the Co.; Hargrove & Co.
| 24th ult., the question arose whether a voluntary settlement executed by a trader about tbree years before he filed a liquidation petition was void,
either under section 9L of the Bankruptoy Act, 1863, or under the statute BANKRUPTCY-FRAUDULENT PREFERENCE-PRESSURE BY CREDITOR-BANK. 13 Eliza. 5. As againat the trnstee in the liquidation. Section 91 provides RUPTCY Act, 1869, s. 92-EVIDENCE-ADMISSION-SERVICE OF COPY OF DEPOSI- that “ any settlement of property made by a trader, not being a settlement TION ALREADY ON FILE-Costs—BANKRUPTCY RULES, 1870, R. 50.-In a case of made before and in consideration of marriage, or made in favour of a Ex parte Hall, before the Court of Appeal on the 23rd ult., a question arose
purchaser or incumbrancer in good faith and for valuable consideration, or a as to fraudulent preference. On January 17 a trader received an advance of settlement made on or for the wife or children of the settlor of property £700 from one of his creditors, on a promise by him that he would forth
which bas aocrued to the settlor after marriage in right of his wife, shall, if with supply the creditor “ with goods, or their equivalent, to cover the advance." He failed to keep his promise, notwithstanding repeated requests
the settlor becomes bankrapt within two years after the date of such by the creditor that the goods might be sent to him. On February 14, the
gettlement, be void as against the trustee of the bankrapt appointed under creditor had an interview with him, and insisted on having the goods or their
this Aot, and shall, if the settlor becomes bankrupt at any subsequent time equivalent. The goods, however, were not sent, nor was any equivalent given
within ten years after the date of such settlement, unless the parties by the debtor. On February 17 the debtor sent his brother-in-law to the
claiming under such settlement can prove that the settlor was at the time of creditor to tell him that it was all np with him, that he could not go on any
making the settlement able to pay all his debts without the aid of the longer, and that he had made up his mind to stop payment. In consequence
property comprised in such settlement, be void against such trustee." In of this information the creditor went to see the debtor, and was told by
The present case the settlor bad carried on for some years the business of him that he was done up, and that his bankers bad told him to stop. The
a baker, and had saved some money, with which he had bought some creditor then pressed him to perform his promise, and threatened that he would
free bold houseg. On the 8th of August, 1878, he executed a voluntary instantly commence proceedings against him if he did not do so. The
settlement of the houses, and of the furniture in his dwelling house, for the debtor promised to send the goods, and the creditor went away. On the
benefit of his wife and obildren. Before be made the settlement he con19th of February the debtor gave B., a friend of the creditor, some bills of
solted bis solicitor, who advised him that the settlement would be of no exchange, accepted by some other firms, requesting B. to hand over the
avail unless he was able to pay all his debts without the aid of the bills to the creditor. B. informed the creditor that he had the bills for him,
property wbich be proposed to settle, and asked him to draw up a statement and he afterwards applied to B. for them, but not (as the court held on the
of his affairs. The settlor accordingly drew up a memorandum, which evidence) until after the 24th of February, on which day the debtor filed a
stated that his assets (independently of the property he proposed to settle), liquidation petition. The proceedings for liquidation fell through, and on the
consisted of cash £25, a hand cart valge £7, working atensils value £40, 10th of March the debtor was adjudicated a bankrupt upon the act of bank.
and fixtures valge £20, total £92, and that his debts owiog amounted to ruptcy committed by the filing of the liquidation petition, Mr. Registrar £58 159., and with this his solicitor was satisfied, and prepared the settlePerys, as Chief Judge, held that the delivery of the bills of exchange was void
ment. At the time when he executed the settlement the settlor was about as against the trustee in the bankruptcy, as being a fraudulent preference, and to purchase a grocery business, which he intended to carry on in addition the Court of Appeal (JESSEL, M.R., and BAGGALLAY and LINDLEY, LJJ.) to his other business. In September, 1878, he made the parobase of the affirmed the decision. The court held that, independently of the question of grocery business, paying £90 for the goodwill and fixtures, He carried on fraudulent preference, there was a fatal objection to the claim of the this basiness for about six months, but lost money by it, and he then sold creditor to the bills, in the fact that he did not elect to take them as an the goodwill and fixtures for the same sum wbiob he had given for them. He eqaivalent for goods until after the act of bankruptcy bad been committed, by continued to carry on the baker's business alone, and in July, 1881, he filed which time they bad become the property of the trustee. The debtor could a liquidation petition, and he then estimated his liabilities at $1,158. The not compel the creditor to accept the bills as an equivalent for goods; it was trustee applied to the court to set aside the settlement as void either ander the right of the creditor to say whether he would accept them as an equiva. section 91 of the Bankruptcy Act, or under the Statute of Elizabeth, Ho lent or not, and, until he had accepted them, the property in them did not deposed that the debtor's estate was not worth more than $230. He had sold the debtor's utensils and fixtures in his gbop to an incoming tenant by gross and libellous misstatements as to the financial position of the company. auction—the utensils for £6 138. 4d., and the fixtures for £5 15s. 93. There Bacon, V.O., granted an interlocutory injunction, and on the appeal one of the was also evidence that, at the date of the settlement, the debtor owed other objections raised was that the court bad no jurisdiction to restrain the debts, which he bad not included in his estimate, wbioh made the total publication of a libel, at any rate, on an interlocutory application. Jessel, amount of bis debts at that date £111. But be said that he had M.R., said that he had no doubt whatever as to the jurisdiction of the court also, at the same date, some flour, worth about £20, which he had not included to grant an injunction in restraint of a libel. It was plain that this jorisdic. in the estimate of bis assets. The debts due at the date of the settlement hadtion was given to the courts of common law by the Common Law Procedure all been paid before the filing of the liquidation petition. The judge of the Act, 1854, s. 79, and by section 82 of that Act was extended to ex parte and Salford County Court set aside the settlement, on ihe ground that it was void | interlocutory applications. This jurisdiction, which was clearly possessed by under the Statute of Elizabeth, because the settlor thereby withdrew from bis the common law courts, was, by the Judicature Act, transferred to the creditors the only means whereby he could carry on the grocery business, so High Court, and extended to all actions, in whatever division they that they should not lose in the event of that business not proving successful. might be brought. But then the question whether that jurisdiction But his honour declined to express any opinion wbether the settlement was bad been properly exercised in the present case was quite another void under section 91 of the Bankruptcy Act. The trustees of the setilement matter. It was a jurisdiction which required to be very carefully applied to the Chief Judge, and he held that the settlement was not void exercised. No doubt in the case of an atrocious libel, which was wholly under either Act. The Court of Appeal (JESSEL, M.R., and BAGGALLAY and undefended, it might be very proper to restrain it upon an interlocutory LINDLEY, L.JJ.), held that the settlement was void under both Actå. JESSEL, application. But when no immediate injury was to be apprehended, it would M.R., said that in his opinion, on the face of the bankrupt's own estimate of be very dangerous to grant an interlocutory injunction in such cases. The his assets at the date of the settlement, he was not "able to pay all his debts statements complained of in the preseyt case were not proved to be untrue. without the aid of the property comprised in the settlement." His debts were In general, no doubt, a plaintiff who sought to restrain the publication of a presently due; how could it be said he was able to pay them when he could particular statement was bound to show that that statement was untrue. All do so only by selling the implements of bis trade ? It was clear, however, in that had been done was to bring forward the secretary of the company, who the present case, that the bankrupt really owed debts exceeding the amount of only said in his affidavit that to the best of bis knowledge, information, and his own valuation of his assets. It was urged that the good will of his busi belief the statements contained in the circular were untrue. When affidavits ness ought to be taken into account. But that could not be reckoned as an were made on information and belief the rules of the court required that the available asset to satisfy debts which were presently due. His lordsbip was grounds of the information should be stated, and that bad not been done. It also of opinion that the county court judge was right in holding tbat the was clear, therefore, that there was no evidence to show that the statements settlement was void under the Statute of Elizabeth. The principle of the complained of were untrue, and oa this ground an interlocutory injunction decision of Malins, V.C., in Mackay v. Douglas (20 W. R. 652, L. R. 14 Eq. ought not to have been granted. Moreover the injunction was in restraint 106), applied-viz., that a man could not be allowed to go into a hazardous of the publication of a circolar which had been already issued to all the charebusiness at the risk of bis creditors. The object of the Statute of Elizabeth holders, and, so far as he understood, there was no allegation that it was was to prevent that sort of thing. The object of the settlement here was to intended to continue the publication. There was no ground, therefore, for the put the settlor's property out of the reach of bis creditors, in case he should intervention of the court before the trial of the aotion. The act was over, the fail in the new business which he was about to commence, and that was the mischief, if mischiet there had been, was done, and there was no apprehension Viry thing which could not be done by a voluntary settlement. BAGGALLAY, of any further issue. A tbird and & fatal objection was that the circular L.J., concurred. LINDLEY, L.J., said that the settlement was made, not sim- appeared to be in the nature of a privileged communication, being a circular ply to benefit the settlor's wife and children, but to protect them against the by one shareholder asking for the co-operation of his brother shareholders in risk of his failing in the new business. It fell within the principle of Mackay an attempt to reconstruct the company. The defendant said tbat he was F. Douglas, which was one of the most valuable decisions upon the Statute of acting bona fide, and there was no evidence that he was not doing Elizabeth. He also thought the settlement was void under section 91 of so, . His lordship could see no ground for taking it out of the character of a the Bankruptcy Act. The court must look, not merely at the amount of the privileged communication, and, in his opinion, a judge should hesitate long settlor's assets, but also at the position which he was assuming. If he was before he decided so difficult a question as that of privilege on an interlocu. about to retire from business, the value of the utensils of bis trade and the tory application. The order of the Vice-Chancellor was accordingly dis. goodwill of his business might well be taken into account, but not if he was charged. BAGGALLAY and LINDLEY, L.JJ., expressed similar opinions as to intending to carry on his business. He must be able to pay his debts in the the jurisdiction, and BAGGALLAY, L.J., expressed his approval of the decision way in which he was proposing to pay them, and that would not be by selling of Fiy, J., iu Thomas v. Williams (28 W. R. 983, L. R. 14 Ch. D. 864), and the implements of his trade, if he was going on with his business.
of that of Jessel, M.R., in Beddow v. Beddow (26 W. R. 570, L. R. 9 Ch. D. The judge of the county court gave the trustee in the liquidation his costs out 89), and said that he point bad also been decided in Thorley's Catlle Food of the debtor's estate, but left the trustees of the settlement to bear their own Company v, Massam (28 W. R. 966, L. R. 14 Ch. D. 763.-SOLICITORS, costs, Tbe Court of Appeal ordered the settlement trustees personally to pay the Beall & Co.; Snell, Son, f. Greenip. costs of both appeale, JESSEL, M.R., said that the trustees might well have desired to have the question decided by a court, but, when they had got a decision, if they wished to appeal they must take the consequences. - SOLICI. INJUNCTION-RESTRICTIVE COVENANT_USING BUILDING-PRIVATE DWELL, TORS, Pritchard, Englefield, & Co.; Stacpoole & Son.
ING-HOUSE-CIRCUS-MODEL LODGING-HOUSE.-In an action of Worsley v.
for an injunction to restrain the defendant from proceeding with the building COMPANY-WINDING UP-PETITION BY SHAREHOLDER WITHIN A YEAR |
of a circus, and from erecting a “Peabody Building," or model lodging-house, AFTER INCORPORATION OF COMPANY-COMPANIES ACT, 1862, s. 79-Costs
upon a plot of land at York. The land in question had been sold by the SECURITY-UNDERTAKING BY SOLICITOR. - In a case of In re The German
plaintiffs to the defendant, who had, upon the sale, entered into a covenant Date Cofee Company, before the Court of Appeal on the 24th ult., the court
that any building wbich should be erected upon the land should not be used for (JESSEL, M.R., and BAGGALLAY and LINDLEY, L.JJ.) affirmed an order for the
certain specified purposes, “or otherwise than as, and for, a private dwelling. winding up of the company, which bad been made by Kay, J., on the petition
house." The plaintiff had commenced to build a circus or amphitheatre upon of some shareholders, on the ground that the whole substratum of the company
one part of the land, and a model lodging-house upon another part, and, in had failed, and tbat it bad become impossible to carry on the business of the com.
answer to the present motion, it was conteoded that the covenant only guarded pany as defined by the memorandum of association. One of the objeotions taken
against user, and there was no case for an injunction until the buildings were to the petition was that it bad been presented before the expiration of a year from
made use of in some manner repugnant to the covenant. The Vice-Chancellor, the date of the incorporation of the company, and it was urged that, inasmuch as
bowever, said that it was as mucb in the interest of the defendant as of the plain. one of the grounds assigned by section 79 of the Companies Act for the winding
tiffs that the injunction should be granted before greater expense was incurred. up of a company is that the company bas not commenced its business within
There was a plain breach witbin the spirit of the covenant, not only with a year from its incorporation, it could not be right, when that state of things
state of things respect to the circus, but also with respect to the lodging-house, which, in did not exist, to make a winding-up order on the ground that it was “just and
id his lordship's opinion, could not be considered to come under the definition of equitable" to do so. LINDLEY, L.J., said that, if it was evident within the
“ private dwelling-house." An injunction, until the trial of the action, was year that the whole thing was abortive, the Act did not require that the
accordingly granted.-SOLICITORS, Tathams g: Pym; Warrener f Cross. company should go on for a year, but it might be wound up within the year under the "just and equitable" clause. .
After the appeal had been set down, the petitioners gave notice of an application that the company should give security for the costs of the appeal.
WILL-CONSTRUCTION-GIFT OF " HOUSE AND PREMISES "- MEADOW Thereapon, the company's solicitors gave their personal undertaking to be
AND STABLING.-In an administration action of Randolph v. Fitzgibbon, answerable for the costs of the appeal, and the application for security was
which came before Hall, V.C., on the 22nd ult., upon further consideration, withdrawn. The appeal being dismissed with costs, the court, instead of
the question arose as to wbat passed under a gift of a “house and premises." leaving the petitioners to enforce the undertaking, made an order that the
The Countess Dowager of Clare, by her will, dated February 29, 1872, gave to solicitors personally should pay the costs of all the respondents served with
the Hon. Mrs. Gerald Dillon a portion of the property ander the description potice of the appeal.-SOLICITORS, John Tucker ; Longcroft & Myers ; Nye &
of “the house and premises in which I now reside, situate in the terrace at Greenwood; R. Recce.
Ryde.” The testatrix at her death occupied the same house, and with it some meadow land and stabliog situated upon the opposite side of the road to that upon
which the house stood, all the property being leasehold, and the question was LIBEL-INJUNCTION-JURISDICTION-PRIVILEGED COMMUNICATION.-In a now submitted to the court whether or not the meadow land and stabling case of The Quartz Hill Gold Mining Company v. Beale, before the was included in the gift. His lordship said that he could not construe the Court of Appeal on the 25th ult., & question arose as to the word “ premises" as meaning no more than "appurtenances," nor coold he jurisdiction of the court to restrain by *iojunction the publication treat the bequest as not containing the word at all. The testatrix, without of a libel. The action was brought by a company against one doubt, used the expression in its secondary and popular sense, and be, thereof their shareholders to restrain the publication and issue by him fore, held that it included the property in question.-SOLICITORS, Warrens ; of a circular addressed to the shareholders, on the ground that it contained Stevens, Longbourne, & Stevens.
Will-CONSTRUCTION-SPECIFIC OR GENERAL LEGACY.-In a case of submitted that the court, under the powers contained in the 5th section of the Broadbent v. Barrow, before Fry, J., on the 25th olt., the question arose Act, could, after the five years mentioned in section 3, rectify the register, and whether a legacy was residuary, specifio, or general. A testator bequeathed a that the above words were not such “special and distinctive" words according number of pecuniary legacies and then he bequeathed all his personal estate of to section 10 of the Act as could be registered as a trade-mark. For the re. which he should die possessed, and which should not consist of money or spondents it was submitted that after the five years tbe registration was securities for money, to R. absolutely. And he gave and devised all the rest, conclusive, and that the court could not, after that date, alter the register, residue, and remainder of bis estate, both real and personal, to trustees upon whether the mark had been originally a proper one to be registered or not. Seccertain trusts. The testator's personal estate being insufficient for the pay. tion 3 of the Trade Marks Registration Act provides as follows :—“The regisment of his pecuniary legacies in full, the question arose whether the bequest tration of a person as a first proprietor of a trade-mark shall be prima facie to R. was residuary or specific or general, and Fry, J., held that it was specific evidence of bis right to the exclusive use of such trade-mark, and shall, after He said that he accepted the definition of a specific legacy given by Jessel, the expiration of five years from the date of such registration, be conclusive M.R., in Bothamley v. Sherson (23 W. R. 848, L. R. 20 Eq. 304)-viz, tbat evidence of his right to the exclusive use of such trade-mark, sabject to the it must be (1) a gift of part of the testator's property itself, and (2) a gift of provisions of this Act, as to its connection with the goodwill of a business." a part emphatically, as distinguished from the whole. Fry, J., said that the CHITTY, J., was of opinion that the effoot of section 3 was to give the persons gift to R. fulfilled both these conditions. He also said that it was clearly not registering a trademark the exclusive right to the user thereof after the period a residuary gift, though it would have been so, if it had not been followed by of five years from the date of registration. The enactment meant, not only the other residuary gift to the trustees. If any of the pecuniary legacies that the title of the person registering was not to be brought into question, but had lapsed by the death of the legates before the testator, it would also that the owner had the exclusive right to use the thing itself wbich was clearly have fallen, not into the gift to R., but into the gift to the trustees, registered. The 5th section no doubt did not contain any limitation as to the whereas, if the gift to R. had lapsed by ber death before the testator, it would time within whick an application must be made to rectify the register, but be have fallen into the gift to the trustees. -SOLICITORS, S. Copping ; Young, coosidered that section was to be read subject to the provisions of the 3rd Jones, Roberts, & Hale ; Lawford, Waterhouse, f Lawford; Solicitor to the section, and that after five years the thing registered was a trade-mark for all Treasury.
purposes. Although this was 80, still the public were protected against any
improper mark being registered by the following safeguards-first, by the fact PRACTICE-FOREIGN LIFE ASSURANCE COMPANY_EXTENSION OF BUSINESS
that all trade marks were required to be advertised for three months before TO THE UNITED KINGDOM-RETURN OF DEPOSIT-LIFE ASSURANCE COMPA
being registered; secondly, that the registrar had a discretion under the 17th and NIES Act, 1870 (33 & 34 Vict. C. 41), s. 3.-In the case of In re The Colo.
18tb rules under the Act as to the registration of any mark; and, thirdly, by nial Mutual Life Assurance Society (Limited), before Chitty, J., on the 251b
the lapse of time before the applicant acquired an absolute right. On the ult., a petition was presented for payment out “to the depositors" of the
wbole ho considered Messrs. Palmer had an unimpeachable title to the mark deposit of £20,000 required by the Life Assurance Companies Aot, 1870, 8.
iu question, and that the application must be refused.-SOLICITORS, Wilson, 3, to be deposited in court by a foreign life assurance company desirous of
Bristows, 8 Carpmael ; Hollams, Son, f Coward. commencing business in the United Kingdom. CHITTY, J., pointed out that the section of the Act referred to required the deposit to be returned LICENSING-LICENSING ACT, 1872 (35 & 36 Vict. c. 94), s. 3-SALE BY “ to the company," bat made the order prayed for opon its appearing tbat RETAIL-CLUB SUPPLYING INTOXICATING LIQUORS TO MEMBERS FOR Coxthe Board of Trade Rales, framed in porslance of the Life Assurance Com SUMPTION OFF THE PREMISES—NECESSITY FOR LICENSE.- In the case of Graf panies Acts, 1870 to 1872, sanctioned the mode of payment desired. V. Evans, which was beard before a divisional court of the Queen's Bench SOLICITOR.-R. C. Want.
Division at Westminster on the 28th ult., the question was raised
whether clubs come within the provisions of the Licensing Act, 1872. It was WINDING UP-CONTRIBUTORY-SUPPLEMENTAL LIST – CERTIFICATE OF
an appeal from a decision of the Westminster metropolitan police magistrate,
convicting the appellant, who was the manager of the Grosvenor Club, for CHIEF CLERK-RES JUDICATA-COMPANIES Act, 1862–GENERAL ORDERS,
selling by retail certain intoxicating liquors without being doly licensed, conRR. 28, 29.-In the case of In re Dubois, also before Chitiy, J., on the 27th
trary to the provisions contained in section 3 of the Licensing Act, 1872. The ult., an application was made by the official liquidator of a company in liqui.
club is a bona fide working man's club, and the respondent being a member of dation to include Dubois' name on the supplementary list of contributories of
it went there and purchased from the barman a bottle of whiskey and a bottle the company in respect of 105 shares. It appeared that the company was wound op on the 26th of June, 1875, and that when the list of contributories
of Bass's ale, which were supplied to him. He paid 38. 11d. for the refresh
ments, which were wrapped up and taken away out of the clubopenly and without was first taken in, the name of Dubois was entered by the then official liquidators as a contributory in respect of the shares, but on the 25th of July, 1877,
concealment. The magistrate drew a distinction between sale for consumption Dubois appeared before the chief clerk and stated that the shares were in fact
on and off the club premises, and held that in the latter case the club required a
license. The court (FIELD, J., and HUDDLESTON, B.) held that the conviction fully paid up, having been treated as such by the company in consideration of advances by him to them; and the liquidator expressing himself satisfied that
must be quashed ; that there is no difference in prinoiple between a sale on or such was the fact, Dubois' name was taken off the list and did not appear in
off the premises, and that the transaction in question was not a sale within the the schedule to the chief clerk's certificate which was filed on the 2nd of May,
meaning of section 3, and therefore no license was required.-SOLICITORS, 1878. Another official liquidator was subsequently substituted, and in March,
Lewis & Lewis ; A. J. Bristow. 1881, he entered Dubois' name as a contributory in a supplemental list. Dubois again attended before the chief clerk and took the objection that the list of contributories baving already been settled by the chief clerk, with the CASES BEFORE THE BANKRUPTCY REGISTRARS. omission of his name from the certificate, the question whether or not he should
(Before Mr. REGISTAR BROUGHAM, acting as Chief Judge.) be a contributory had been finally adjudicated on, and could not be re-opened
Feb. 18.-Ex parte Garn, Re Gann. now after a lapse of several years. Upon the matter being adjourned into court it was contended on behalf of tbe officia: liquidator that there was
Debtor arrested pending proceedings under a petition for liquidation by nothing on the face of the chief clerk's certificate showing any adjudication,
arrangement or composition ordered to be released. and that there was no reported case where a liquidator of a company had been
This was an application by William George Gaon for his release from held, on the ground of laches, to have lost his right to put a contributory's name
Holloway Prison. on the list. CHITTY, J., said that it was too late to add Dubois' name as a
On the 12th of January last, Messrs. C. W. Hooper & Sons obtained an contributory. Tbe certificate of the chief clerk omitting the respondent's name
order from the judge of the Clerkenwell County Court for the committal of Irom the schedules of contributories was binding. 10. was trae that in the W. G. Gapp to prison for twenty-one days for the non-payment of £17 12s. 7d. present case the certificate was not sufficiently specific witbin the General
The order was immediately drawn up and placed in the hands of the warrant Orders under the Companies Act, 1862, rr. 28, 29, but it was the usual prac
| officer to execute, but, before he could enforce it, Gann filed a petition for tice, with a view to save expense, to omit from the certificate the names of
liquidation in the London Bankruptcy Court. contributories who had establisbed their claims to be treated as fully paid-up
On the 14th of January an injunction was granted restraining proceedings by shareholdere. He must, therefore, bold that the matter bad been finally
Messrs. Hooper & Sons until after the 5th of February, and on the 6th a adjudicated upon, and that the attempt to put the respondent on the list was
further injunction was granted until after the 14tb, and another injunction was too late, although his decision might have been otherwise bad a case of fraud
granted on the 15th until after the 27th of February. These orders were been made out. -SOLICITORS, Blackford, Riches, Kilsby, & Wood; J. H. Lane.
served on Messrs. Asburst, Morris, Crisp, & Co., the solicitors for Messrs.
Hooper & Sons, that of the 15th being served on the evening of that day, TRADE-MARK-OLD MARK-COMMON WORDS-REGISTRATION-ABSOLUTE On the morning of the 15th the warrant officer, finding that Messra. TITLE AFTER FIVE YEARS—TRADE-MARKS REGISTRATION Act, 1875, ss. 3, Hooper & Sons had not been further restrained, endeavoured to arrest the 5, 10.-In a case of Re l'almer's Trade-Mark, before Chitty, j., on the 28th debtor, but without success, and in the evening the officer met the debtor's ult., a question arose as to the effect of registration of a trade-mark for a wife, who produced to him a restraining order, made that day by the Court period of five years. Messrs. Palmer had, in 1877, registered as their trade- of Bankruptoy. He said, “ That is all right, but they ought to have had it mark (an old mark) the words “ Braided Fixed Stars" in reference to matches, 1 down at our court"-meaning tbe Clerkenwell County Court. the mark having been used by them for a period of seven years before 1876. On the following day, and before any notice of the restraining order bad The mark had reference to a patent for the purpose of preventing fuse es from been given to the Clerkenwell County Court, the warrant officer saw the falling off. T'he patent had now expired, and another firm of Bryant & May debtor at his house, and told him that he had come to arrest him. The were desirous of using the same words in connection with fugees of their own debtor produced the restraining order made on the previous day, but the manusacture, but were met by Messrs. Palmer with a threatened action for offioer said that would not do; he must go to prison. He was then conveyed infringing their trade-mark. Messrs. Bryant & May accordingly took out this to Holloway Gaol. summons, wbich was adjourned into court, for the rectification of the register, Mattinson, in support of the applioation, contended that this court baring and to have the registration struck out, on the ground that Messrs. Palmer were granted a further restraining order on the 15th of February until the 27tb, not entitled to the exclusive user of the above words, and that the mark was the arrest was upjustifiable, and that the debtor must be released. not one authorized to be registered under the Act. For the applicants it was Corrie Grant, for the detaining creditors, submitted that the restraining
order of the 5th of February baving expired on the 14th, the arrest was Professional Matters.-Many conveyancing questions in conneotion with the right, no notice having been served upon the bigh bailiff of any further profession came before the committee during the year, and a circular was, in order.
the month of May, 1881, issued to each member, stating the decision of the Mr. REGISTRAR BROUGHAM said the warrant officer was the agent of the committee on the following points:high bailiff, and if he arrested a debtor with the knowledge of a restraining | 1. Declaration of identity on dissolution of partnership.-It has, until order, he did so at his peril. It was admitted that the order was shown lately, been the practice in the country to identify the persons signing & to the warrant officer when he arrested tbe debtor, and, if he had any doubt notice of digssolution of partnership by declaration on a half-crown stamp. opon the sohject, it was bis duty to bave gone to bis principal for in- The Gazette authorities have not been in the babit of requiring this where a stractions. If he had done go, the registrar did not suppose the bigh London solicitor was the attesting witness, and they have now arranged where bailiff would have disregarded the order of this court. It was enough for a country solicitor, whose name appears in the Law List, is the attestiog the debtor to show that, when the officer arrested him, he knew there was witness, equally to do without a declaration of identity. This step was taken & restraining order in existence. The order in this case appeared to have after a correspondence between Mr. E. W. Williamson and Mr. H. Hughes, a been served at the office of the solicitors for the detaining creditors on the 15tb. The debtor would be released, and the detaining creditors must pay
2. Valuations for Somerset House.—Nearly the universal practice has the costs of the application.
been to obtain the aid of a professional valuer in arriving at the price of prop. Solicitor for the debtor, W. H. Herbert.
erty directed to be sold by a will and so coming into a re-iduary account, and Solicitors for the detaining creditors, Ashurst, Morris, Crisp, f. Co. this whether the property be freehold or leasehold. From recent inquiries
made at Sumerset House, it has been found that it is not essential to the passing of the account that the valuation should be made by a professional valuer. If the solicitor shows the method in which he arrives at the value,
his estimate will be accepted. SOCIETIES.
3. The fee on production of an assignment to a landlord or his agent. The committee decided that, although in the case of a consent being required
by a lease, the vendor is to obtain such consent and to pay the fee, if any, yet LAW ASSOCIATION.
where the lease requires the lessee, his executors, administrators, or assigns, At the usual monthly meetiog of the directors, held at the hall of the
to produce the deed within so many days after execution, and to pay the Incorporated Law Society, Chancery-lane, on Thursday, March 2, the follow.
fee, the duty to do this lies opon the purchaser, who has also to pay the fee ing being present- viz., Mr. Desborough (chairman), and Messrs. Boodle, / on production. Desborough, jun., Hedger, Sawtell, Scadding, Sidney Smith, and A. B.
4. In the case of a coal or mineral lease to be made, the committee decided Carpenter (secretary), a grant of £40 was made to the widow and daughter of
that, in the absence of a previous bargain to the contrary, if the lease cona member and £10 to the widow of a non-member, one new member was
templates the getting of all the coal or other minerals under land of the lessor, elected, and the ordinary general business was transacted.
wbich is at the time of the lease used as agricultural land, the lessor is not entitled to any stipulation that the lessee shall pay damage for subsidence, and
that, in case of subsidence, the landlord must compensate the tenant of the SHEFFIELD DISTRICT INCORPORATED LAW SOCIETY. surface. The committee also decided that the cost of any survey, necessary The following are extracts from the report of the committee :
to ascertain the area under which coal or minerals are to be demised, should The committee, in presenting the seventh annual report, have to announce
fall upon the lessor. tbat the number of members is 134.
Other questions on which the committee have passed resolutions are set out Bills in Parliament.—The session of 1881 will be long remembered as that
under Miscellaneous. when two most important Bills (originally introduced by Lord Cairns
Legal Procedure.--The report of the Committee on Legal Procedure ocoupied wben Lord Chancellor) passed, with very little alteration, through the two
muob of the time of your committee. The Associated Provincial Law Societies Houses of Parliament. These were the Conveyancing and Law of Property Act,
bave interested themselves in the proposed rules and orders. Communications 43 & 44 Vict. c. 41, and the Solicitors' Remuneration Act, 43 & 44 Vict. c. 44. took place through their secretary, Mr. Marsball, of Leeds, and your committee The history of these Bills has been so often discussed by the profession that
were in substantial accord with the Associated Provincial Law Societies, but any lengthy comments thereon are not now needed. It is probable, how.
were not able to send a representative to the meeting held on the subject in ever, that the first will effect a considerable reforce in conveyancing, and con
London. A committee of solicitors in London now periodically meets on the duce greatly to the shortening of deeds ; and the latter is intended to give
question. to solicitors what has been so long needed, adequate remuneration for trouble
MISCELLANEOUS. bestowed, without taking into account the mere length of deeds. It may not Pees on Swearing Affidavits.—The committee passed a resolution that it is be out of place to add that a clause—the principle of which has been sup. advisable, as a general rule, that the fees for swearing affidavits should be ported during several years by your society, to relieve lessees against forfeiture paid and received in cash at the time. on breach of covenant-was introduced into the former Act, and has passed Court Fee on Probates.—The committee decided that, for the present, the with the rest, leaving, however, the question of assignment without license an old system as to fee for probate under seal (that is, on the gross amount) should exception to the rule. The provisions as to mortgages, appointment of new be continued. trustees, eplargement of terms beld at nominal and unpaid rents into fee Cockburn v. Edwards. The committee draw the attention of the members simples, and many other useful provisions, form parts of an Act which it to this case, which lays down the rule that a solicitor, in preparing a mortgage behöves every member to study thoroughly. A very desirable alteration has from his client to himself, ought not to omit to insert a clause qualifying the been effected by introducing the title “Statutory Declarations' Act, 1835," power of sale, by requiring a notice to be previously given. instead of the long and confused sentence with which most statutory declara. Fees to Valuers.—The committee have had before then the question of the tions ended. With reference to the influence of the Conveyancing and Law of payment to valuers of an ad valorem fee on a valuation. They thought that Property Act upon conditions of sale, the attention of members is directed to the each transaction would have to be dealt with on its own merits, but ihat the subsequent part of this report, under the heading of Conditions of Sale. payment of a commission was not desirable. The Solicitors' Remuneration Act legalizes the adoption of a commission scale in conveyancing charges, and gives to each of the presidents of the Incor. porated Law Society of England, and the president of one of the Associated Provincial Law Societies, a voice in the arrangement of the scheme and the The United Law Clerks' Society, having been in existence half a drawing up of rules and orders, which have to lie on the table of both Houses century, is about to celebrate its jubilee at the Freemasons' Tavero. Lord of Parliament, witbout objection, for a month, before coming into force. Justice Holker bas oongepted to preside co tbe ocousion, and will be sapYoor committee bave co-operated with the committees of other provincial law ported by several of her Majesty's judges. societies, and with the Associated Provincial Law Societies, in attempts to A parliamentary return, moved for by Mr. Hopwood, shows that in the agree upon a workable scale-one wbich can be obtained without pressure, and twenty years from 1861 to 1880 inolosive 512 persons were convicted of yet one which will be fairly remunerative to the practitioner; and there seems capital offences, of whom 279 were executed, 194 had their sentences every prospect that the efforts of the profession will be crowned with success, commuted to penal servitude for life, and 16 for various shorter terms; the terms of the order haviog been agreed on by all.
while 13 were removed to Broadmoor. In one case the sentence was Conditions of Sale.—The committee bave given very great consideration to quashed by the Court of Criminal Appeal, three prisoners committed the general conditions of sale of the society, which have been affected by the suicide, and six received a free pardon. passing of the Conveyancing and Law of Property Act, 1881. After con. On Wednesday, before the Court of Appeal at Westminster, an applicant siderable discussion, it was eventually agreed that the conditions should be in person, whose name did not transpire, applied to their lordships for a new laid before Mr. Dixon for settlement. They will be then subsequently trial of an action for libel which he bad brought against a solicitor, and which stereotyped, and can be obtained, as before, only from the librarian, and they he said bad been decided against him by Mr. Justice Lopes without a jury. can only be printed from stereotyped plates by the authorized printer for the He was proceeding to read a paper setting forth the facts, when Lord Justice time being of the society. Two of the minor improvements proposed in the Breit said; You have no counsel, I believe. Who wrote ibis paper for you? conditions provide that a vendor of agricultural land, who is also the oocupier -Applicant: Mr. Brown, a solicitor's clerk.-Lord Justice Brett : Whose thereof, is entitled on a sale under the conditions, to the same valuation and clerk was he ?-The applicant gave the name of the solicitor, which the offgoing allowance, in addition to the purchase-money, as he would bave reporter in the daily paper abstains from mentioning.-Lord Justice Brett: received had he been merely a tenant according to the custom of the country. Did you pay him for this ?- Applicant: I did, my lord.—Lord Justice The other provides that the deposit of the money, under the 13th condition of Brett: Then you had better go and tell Mr. Brown and his employer wbat sale, by a purcbaser may be in any bank within twenty miles of the Town you bave told me, and they will probably bear more about it. If Mr. Brown Hall of Sheffield-i.e., the radius covered by the society's workings—the in. advised you to do all this, he only advised you to take up the time of the vestment being, of course, at the purchaser's own risk. Pending the settle court by reading nonsense. I mean to write to the law society and tell them ment of the conditions, the present form will be used, and some members what has been done by this solicitor's olerk.--The applicant then left the propose, until the issue of the new conditions, to negative the act.
4. Restriction on constructive notice.] (1.) A purchaser shall not be prejudi. cially affected by poti je of any instrument, fact, or thing unless
(i.) It is within bis own knowledge ; or CONVEYANCING,
(ii.) It has come to the knowledge of his counsel, as such, or of his solicitor, A Bill intituled an Act for further improving the Practice of Conveyancing; or other agent, as such ; or and for other purposes.
(ii.) It would have come to the knowledge of the purchaser, or of his Be it enacted, &c. :
solicitor, or other agent, as such, if such inquiries and inspections Preliminary,
had been made as ought reasonably to have been made by them or 1. Short titles ; commencement; extent ; interpretation.] (1.) This Act may
one of them. be cited as the Conveyancing Act, 1882; and the Conveyancing and Law of (2.) This section shall not exempt a purchaser from any liability under, or Property Act, 1881 (in this Act referred to as the Conveyancing Act of 1881), any obligation to perform, any covenant, condition, or provision contained in and this Act may be cited together as the Conveyancing Acts, 1881, 1882. any instrument under which his title is derived, mediately or immediately ;
(2.) This Act, exoept where it is otherwise expressed, shall commence but such liability or obligation may be enforced in the same manner and to and take effect from and immediately after the thirty-first day of December the same extent as if this section had not been enacted. one thousand eight hundred and eighty-two, which time is in this Act (3.) This section applies to purchases made either before or after the comreferred to as the commencement of this Act.
mencement of this Act ; save that, where an action relative to a purchase is (3.) This Act, except wbere it is otherwise expressed, does not extend to pending at the commencement of this Act, the rights of the parties shall not Scotland.
be affected by this section. (4.) In this Act
Leases. (1.) Property inoludes real and personal property, and any estate or
1 5. Contract for lease not part of title to lease.] (1.) Where a lease is made interest in any property, real or personal, and any debt, and any thing in action, and any otber right or interest in the nature of
| under a power contained in a settlement, or conferred by Act of Parliament or
otherwise, any preliminary contract for or relating to the lease shall not form property, whether in possession or not;
part of the title, or evidence of the title, of any person to the lease, or to the (ii.) Porobaser includes a lessee or mortgagee, or an intending purobaner,
benefit thereof, Jessee, or mortgagee, or other person, who, for valuable consideration,
(2.) This section applies only if and as far as a contrary intention is not extakes or deals for property.
pressed in the instrument creating the power, and shall have effect subject to Investigation of Title.
the terms of that instrument and to the provisions therein aintained. 2. Protection to solicitor, trustees, dic., dispensing partially with investigation (3.) This section applies only to leases made under powers created after the of title.] (1.) Where the solicitor of a purchaser finds that the title shown to the property purchased has been previously investigated and accepted on behalf
Married Women. of a purcbaser through whom the title is deduced, it is bereby declared to 6. Abolition of acknowledgment of deeds, and of examination of married be in the discretion in good faith of the solicitor to dispense with further women-40 & 41 Vict. c. 18.] (1.) The acknowledgment of deeds by married examination or investigation of the title so previously investigated and
the me, 80 previously investigated and women under any Act of Parliament, and the examination of married women accepted; and he shall not be answerable in respect of any loss that may in court, or otherwise, prescribed by the Settled Estates Act, 1877, are hereby arise from bis dispensing therewith in good faith accordingly.
abolished, (2.) Where the solicitor is acting for trustees, executors, agents, or other (2.) On a surrender by busband and wife of copyhold land, in which the wife persons in a fiduciary position, those persons also shall not be answerable in alone has, or she and her husbend in her right bave, an equitable estate, the respect of any loss that may arise from his dispensing therewith in any cir- separate examination of the wife is hereby abolished; and every such surrender cumstances.
shall, without such examination, be binding on the married woman and all (3.) This section applies oply to solicitors dispensing as aforesaid on pur persons claiming under her; but this provision does not affect the custom of chases made after the commencement of this Act.
any manor relative to surrender or admittance, Searches
(3.) The enactments described in Part I. of the Second Schedule to this 3. Official negative and other certificates of searches for judgments, Crown
Act are hereby repealed. debts, gc.—3 4 Will. 4, c. 74.] (1.) Where any person requires, for pur.
(4) The foregoing provisions of this section, including the repeal therein, poses of this section, search to be made in the Central Office of the Supreme
apply only to deeds executed, and applications and surrenders made, after the Court of Judicature for entries of judgments, deeds, or otber matters or docu
commencement of this Act.
(5.) Notwithstanding the repeal or any other thing in this section, the ments, whereof entries ara required or allowed to be made in that office by any Act described in tbe First Schedule to this Act, or by any other Act,
certificate, if not lodged before the commencement of this Act, of the taking he may deliver in the office a requisition in that behalf, referring to this
of an acknowledgment by & married woman of a deed executed before the
commencement of this Act, with any affidavit relating thereto, shall be lodged, section. (2.) Thereupon the proper officer shall diligently make the search required,
examined, and filed in the like manner and with the like effects and conseand shall make and file in the office a certificate setting forth the result
quences as if this section bad not been enacted. thereof, and he may at any time add to or amend that certificate ; and
(6). There shall continue to be kept in the Central Office of the Supreme office copies of that certificate shall be issued on requisition, and an office
Court of Judicature an index to all certificates of acknowledgments of deeds copy sball be evidence of the certificate.
by married women lodged therein, containing the names of the married (3.) In favour of a purobaser, as against persons interested under or in
women and their husbands, alphabetically arranged, and the dates of the respect of judgments, deeds, or other matters or doouments, whereof entries
certificates and of the deeds to wbich they respectively relate, and other are required or allowed as aforesaid, the certificate, according to the
particulars found convenient; and every such certificate lodged after the tenour thereof, shall be conclusive, affirmatively or negatively, as the case
commencement of the Act shall be entered in the index as soon as may be
after the certificate is filed. may be.
(7.) An office copy of any sach certificate filed before or after the commence. (4.) General Rales shall be made for purposes of this section, prescribing
ment of this Act shall be delivered to any person applying for the same; and forms and contents of requisitions and certificates, and regulating the
every such office copy sball be received as evidence of the acknowledgment of practice of the office, and prescribing, with the concurrence of the Com
the deed to which the certificate resere, missioners of Her Majesty's Treasury, the fees to be taken therein ; which
7. Power for married woman to dispose of proprietary interests, release Roles shall be deemed Rules of Court within section seventeen of the
powers, equity to settlement, &c.] (1.) A married woman may, as fully and Appellate Jurisdiction Act, 1876, as altered by section nineteen of the effectually as if she were not married, by deed, made with the concurrence Supreme Court of Judicature Act, 1881, and may be made, at any time after therein of her husband, the passing of this Act, to take effect on or after the commencement of this (i.) Dispose of any present or future or reversionary interest, vested or con. Aot.
tingent, in any property ; and (5.) If any officer, clerk, or person employed in the office commits, or is (ii.) Release or extinguish any power given or reserved to her in respect of party or privy to, any act of froud or collusion, or is wilfully negligent, in
any property ; and The making of or otherwise in relation to any certificate or office copy under (iii.) Release or extinguish her right or equity to a settlement out of any this section, he sball be guilty of a misdemeanor.
property ; and (6.) Nothing in this section or in any rule made thereunder shall take away, (iv.) Dispose of, release, or disclaim any property, abridge, or prejudicially affect any right of any person to make any search in to which interest, power, right, equity, or property, she, or her husband in the effice; and every such search may be made as if this section or any such her right, is for the time being entitled, under any instrument made before or Rule had not been enacted or made.
after the commencement of this Act, or otherwise. (7.) Where a solicitor obtains an office copy certificate of result of search (2.) The powers given to a married woman by this section shall not prevent under this section, he shall not be answerable in respect of any loss that may the exercise of any power given or reserved to her independently of this arise from error in the certificate.
section, except where and as far as any act done under this section amounts (8.) Where the solicitor is acting for trustees, executors, agents, or other to a suspension or extinguishment of that other power, persons in a fiduciary position, those persons also shall not be so answerable. (3.) This section does not authorize a married woman to deal in any manner
(9.) Where such persons obtain such an office copy without a solicitor, tbey shall also be protected in like manner.
(i.) Property, which she is restrained from affecting by alienation, antici. (10.) Nothing in this section applies to deeds in rolled under the Act of the pation, or otherwise ; or session of the third and fourth years of King William the Fourth (chapter (ii.) Property setiled on her by settlement, or agreement for settlement, seventy-four) “for the abolition of Fines and Recoveries, and for the made on her marriage. substitution of more simple modes of Assurance," or under any other Act. (4.) The Act described in Part II. of the Second Schedule to this Act is (11.) This section does not extend to Ireland.
| hereby repealed.