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LONDON, APRIL 8, 1882.
the suggestions of such a committee may still be useful, provided CURRENT TOPICS.
they are issued at an early date, and are indorsed by a really representative meeting of the bar. But after the new rules have
been promulgated it is hardly to be supposed that any external AN ORDER is in preparation transferring seventy causes from criticism will induoe the Rule Committee of Judges to recall them. the list of Mr. Justice CHITTY to that of Mr. Justice Kay for the purpose of hearing only.
IT APPEARS that representations have been made by the United
States Government to the English Government with reference to MR. JUSTICE CHITTY's absence on circuit will, it is expected, some subjects of the United States who are now imprisoned in extend over the first fourteen days of the Trinity Sittings, during Ireland as suspects; and it would seem, from the speeches at the which period Mr. Justice NORTH will transact his business in New York meeting on Tuesday, that the main ground of complaint court.
is, that the American suspects are imprisoned without an oppor
tunity for trial. It may be worth while to call attention to the view LORD JUSTICE BAGGALLAY, whose health is happily nearly on this subject taken by the United States Government at the time of re-established, called at Lincoln’s-inn on Tuesday to arrange with the Fenian Conspiracy, when the Habeas Corpus Act was his brother judges of the Court of Appeal with reference to the suspended in Ireland, and several American citizens were imprisoned Trinity Sittings.
without being tried. Writing to Mr. Adams, on March 10, 1867, Mr. Seward said (see the letter printed in the appendix to the
Report of the Naturalization Commission, 1869, p. 49) :-“ It THE MASTER OF THE Rolls will sit with the Court of Appeal may be expected that some of our Irish-born naturalized citizens at Westminster from the 24th of April to the 29th of April, who are now sojourning or travelling in Ireland will be both days inclusive; during which period Lord Justice HOLKER arrested. Americans, whether native-born or naturalized, owe subwill sit with the Court of Appeal at Lincoln’s-inn.
mission to the same laws in Great Britain as British subjects, while residing there and enjoying the protection of that Govern.
ment. We applied the converse of this principle to British subTHE USUAL VACATION NOTICE for the Chancery Division will jects who were sojourning or travelling in the United States be found in another column. It will be observed that there will during the late rebellion." These sensible observations may be be no sitting in court during the Easter Vacation, and that Mr. commended to the attention of the present Government of the Justice CHITTY's chambers will be open on Saturday, April 8, and United States. on every day next week except Monday and Tuesday. It is understood that Mr. Justice Kay will attend at the Judges' Chambers on the 12th, 13th, and 14th insts., for business connected with Court (ord. 57, r. 2) it is not to be reckoned in the computation
Good FRIDAY is strictly dies non juridicus, and by the Rules of the Queen's Bench Division.
of the time allowed for legal proceedings where such time is less than six days. Under 7 & 8 Geo. 4, c. 15, Good Friday is, for all
purposes as regards bills of exchange and promissory notes, " to IN COMMENTING a few weeks ago on the case of Rayner v. be treated and considered as the Lord's Day, commonly called Preston (29 W. R. 547), we pointed out the great difficulties Sunday,” and “in all cases where bills of exchange or promissory which surrounded the suggestion made by the majority of the Court notes shall be payable on the day preceding any Good Friday it of Appeal in that case that the insurance office which had paid to shall not be necessary for the holder or holders of such bills of the vendor money on the policy of insurance of the premises con- exchange or promissory notes to give notice of the dishonour tracted to be sold, could recover back this money, which they had thereof until the day next after such Good Friday.”. Under the paid under compulsion of law, and were bound by law at the time to Licensing Acts public-houses are required to be closed, except pay. It will be seen from the report of a case of Castellain v. between certain hours, on Good Friday as on Sunday; and the Preston, which we print elsewhere, that the insurance company, Act of 1874 required them also to be closed at the same time of acting on the suggestion of the learned judges of the Court of the day preceding Good Friday “as if Good Friday were Sunday Appeal, brought an action against the vendor to recover back the and the preceding day Saturday.” Persons keeping any public money paid on the policy. Mr. Justice CHITTY, however, has, as billiard table are (by 8 & 9 Vict. c. 109, s. 13) subjected to we think very properly, dismissed the action with costs. We may, penalties if they allow any person to play at such table on Good perhaps, venture to remark that it is undesirable that judges of the Friday. The occupier of a factory or workshop must, under the Court of Appeal should go out of their way to throw out sugges- Factory and Workshop Act, 1876, allow to any child, young tions of this kind.
person, and woman employed therein a holiday on the whole either of Good Friday or of the next public holiday.
A SMALL MEETING of members of the bar was held on Thursday week in order, as was stated in the reports in the daily WE DO NOT SEE how Sir W. HARCOURT could refuse to papers, “ to take into consideration the new rules of legal pro- respite LAMSON when he was assured on the authority of the cedure framed by the judges, among them being the proposal to Attorney-General of the United States that important evidence abolish trial by jury, to do away with pleadings in actions, besides on its way from America. A respite should always be several other important changes materially affecting the members granted where necessary for inquiring into facts alleged in of the legal profession.” Considering that no rules have yet been exculpation of a prisoner under sentence of death ; and when it is framed, and that, as we announced last week, no proposal has been stated by a responsible authority that the evidence to be adduced adopted tampering with any existing right to trial by jury, this is such as might have influenced the decision of the jury statement was not very happily conceived. We do not learn that at the trial, it would be very unjust to refuse an opporanything very definite resulted from the meeting except the tunity for its investigation. A request by the President of the appointment of a committee. Although it is very late in the day, United States that such opportunity may be afforded rests on the same footing as a request by any other responsible person who 56 or 57 are not to be found, and, as was pointed out by Lord vouches for the importance of the evidence which is forthcoming, Justice BRETT in the recent case, by Lord Penzance in Walsall and is wholly different from a mere intervention by a foreign Overseers v. London and North-Western Railway Company (L. R. 4 potentate on behalf of a prisoner condemned to death. It is App. Cas., at p. 43), and by JESSEL, M.R., in In re Chenneti (L. R. 8 stated in the Annual Register for 1864 that after the conviction Ch. D., at p. 501), there cannot be an implied exception, or an of MÜLLER for the murder of Mr. BRIGGS, the King of exception outside the statute. Moreover, sections 56 or 57 or the Prussia, and also one of the minor German potentates, telegraphed corresponding sections of the Common Law Procedure Act, 1854, to the Queen to request her to save the prisoner's life. Inter- appear to have been considered by the Court of Appeal in at ventions of this kind are, of course, wholly inadmissible.
least three cases since the Judicature Act, and no objection to the jurisdiction of the Court of Appeal was taken in any of them.
On all grounds, therefore, we think that an appeal lies. But OUR READERS may remember our remarks upon the great ought there to be an intermediate appeal to a divisional court ? latitude given to judicial discretion by the Conveyancing Act, On this point there is much more room for doubt. The words 1881. Signs are beginning to appear that, as was inevitable, “the court or a judge" have been usually construed to mean that different minds take different views as to what constitutes a application is to be made to a judge first, and to the court afterproper exercise of judicial discretion. Last Monday an applica- wards; and in the three cases to which we have referred (they are tion came before Mr. Justice Fry under section 35 of the Act, Clow v. Harper, L. R. 3 Ex. D. 198 ; Ward v. Pilley, L. R. 5 which permits the court, notwithstanding restraint on anticipa- Q. B. D. 427 ; Horle v. Burr, 49 L. J. Ch. 665) the appeal was tion, with a married woman's consent, to " bind” her property. from a judge to a divisional court, and from a divisional court to In this case (Hodges v. Hodges), by the will of the married the Court of Appeal. Upon consideration of this second question woman's father a legacy was settled upon her for life for her we think that the words of section 19 are too strong to be got over, separate use, without power of anticipation, remainder to her and that any intermediate appeal may be dispensed with. It is children, in default of children as she should by will appoint, and, extremely doubtful, however, whether this was the intention of in default of appointment, in trust for her absolutely. She had the Legislature. An amendment of the “reference sections” of never had any children, and was over fifty-five years of age. A the Judicature Act appears to be very much required in this and suit was long since brought to administer the will, and this other points. It will be remembered that Mr. MELLOR's amendsummons was taken out in it by the married woman and her hus- ing Bill passed both Houses of Parliament in the first session of band, asking that part of the fund might be sold and the proceeds 1880, but as there was no time at the end of the session to conpaid to the wife on her separate receipt. It seems that the wife sider in the House of Commons certain formal amendments made resides in France with her husband, who is a domiciled French- in the House of Lords, it did not become law. man, and that her French creditors, not understanding the mysteries of restraint on anticipation, “ harass” her much, for that she does not pay her debts. Under these circumstances Mr.
Mr. FRANCIS SAVAGE Reilly, counsel to the Speaker, has Justice Fey assented to the application and made the order asked been appointed one of her Majesty's Counsel. Mr. REILLY was for by the summons. It is an interesting fact, which was not called to the bar in 1851. mentioned to the court, that some time ago, a good while before section 39 of the Conveyancing Act existed, a similar order was actually made with regard to the very same fund by the late ViceChancellor MALINS. But perhaps the chief interest of the recent decision is to be found in the light which it casts upon the ques
CONSOLIDATION AND ITS LIMITS. tion of judicial discretion. In Tamplin v. Miller, two or three It is probable that if the doctrine of consolidation had been weeks ago, Vice-Chancellor HALL took occasion to remark that he confined to the simple cases in respect of which the claim first should require a very strong case to be made out before exercising arose, no complaint would have arisen against it. But its extenhis discretion under section 39. But it may be asked, if " being sion to assignees and purchasers from the mortgagor, even for harassed” by creditors who cannot be got to understand restraint valuable consideration and without notice, has given rise to cases on anticipation constitutes a strong case, what would be a weak of such manifest hardship, that the courts and the Legislature one? We should rather infer that the views on this point of have both interposed almost simultaneously to check the still the learned judges are not identical, and that people who have growing mischief. We propose shortly to inquire how far their such applications to make will not, if they can help it, address efforts are likely to be successful. them to the Vice-Chancellor.
With regard to section 17 of the Conveyancing Act, we see little probability that it will be suffered to have any operation at
all. The right to consolidate would never have been invented by THE DECISION on Monday in Ormerod v. Todmorden Joint mortgagees and imposed by them as a matter of positive contract Stock Company, in which the Court of Appeal reversed an order upon mortgagors; but now that the Court of Chancery has of a judge referring certain issues in a cause under section 57 of invented it for them, they will never be persuaded voluntarily to the Judicature Act, 1873, is one of great importance. Three loose their hold of it. Even any restrictions which may be imquestions appear to have been involved—(1) w er the par- posed on the doctrine by the courts will ultimately take effect ticular issues ought to have been referred as a matter of discre- only so far as their intended operation does not admit of being tion; (2) whether there was jurisdiction to refer them; and (3) undone by means of a positive contract between the parties. whether an appeal lies from such an order to the Court of Appeal. From this point of view the recent decision of the House of Upon the two first questions we prefer to say nothing until the Lords in the case of Jennings v. Jordan (30 W. R. 369, L. R. 6 facts are more fully before us. The third question, whether an App. Cas. 698) appears to be interesting and important, appeal lay, is separable into two branches. First, does an appeal lie The material facts of the case were as follows:-In 1838 one at all? Secondly, does it lie without an intermediate appeal to a Thomas Tale settled certain copyholds, subject to a mortgage divisional court ? As to the first branch, the words of the 57th previously executed by him, in consideration of his daughter's section are that “the court or a judge” may order any question marriage : a settlement which was, of course, in law for valuable “in a cause” requiring “any scientific or local investigation which consideration. Subsequently to the settlement he executed cannot, in the opinion of the court or a judge, conveniently be another mortgage over some other property; and this last mortmade before a jury, or conducted by the court through its other gage, together with various others, getting into the same hands as ordinary officers,” to be tried before an official referee. The thc mortgage which affected the settled property, the incum19th section of the Act provides that the Court of Appeal shall brancer refused to allow the trustees of the settlement to redeem have jurisdiction to hear appeals from any judgment or order” the mortgage affecting the settled property, except upon condiof the High Court, " or of any judge or judges thereof," " save tion among other things) of also redeeming the mortgage as hereinafter mentioned.” Amongst the well-known exceptions executed subsequently to and affecting property not comprised in (see sections 45, 47, and 48) orders of reference under sections the settlement. The claim to consolidate mortgages executed
subsequently to the settlement, bears a very different aspect from gage made by A. and B. jointly; and (4) that one mortgage ma the claim to consolidate those which had been executed pre- be consolidated with another not vested in the same hands, viously. So far as mortgages were concerned which had provided that both mortgages are held upon trust for the same been executed previously to the settlement, the rule of law, person. It is seldom that a single case has been able to do so independently of section 17 of the Conveyancing Act, was too much mischief by extending still further a principle which had clear to permit any hope of resistance to the claim to consolidate, already (at least in the judgment of the Legislature) been carried if the decision of the question is to depend upon the reported too far. The first of these propositions has now been definitely cases in the courts inferior to the House of Lords. But it is negatived by the decision of the House of Lords in Jennings v. particularly worthy of remark, that this question was not raised Jordan. by the appeal in Jennings v. Jordan; and therefore that the The importance of the decision in a great measure depends, as decision in that case by no means proves that the Lords would we said, upon the inability of mortgagees to reinstate the conhave sustained some parts of the doctrine which have become demned doctrine by imposing it as a matter of express contract firmly rooted in the practice of the inferior courts. The Lord upon mortgagors. Whether the assignee of an equity of redempChancellor openly avowed the difficulty which he felt in holding tion, if the mortgage creating it should contain an express conwith Beevor v. Luck (15 W. R. 1221, L. R. 4 Eq. 537) that a tract to permit this kind of consolidation, would afterwards be mortgagee's right to consolidate, as against the purchaser of an entitled to repudiate the bargain, of which he must have had equity of redemption, can be enlarged by the transfer to the notice at the time when he took his assignment, is a question which mortgagee, subsequently to the purchase, of other previously would be very difficult to decide. But such contracts, besides being existing mortgages ; and it may be well worth the while of some very invidious, would be so difficult to frame that we should not enterprising litigant to carry this question to the supreme expect them to become common in practice. tribunal. But no attempt was made in Jennings v. Jordan to disturb the judgment of the court below, so far as regards mortgages executed previously to the settlement. The claim to consolidate, as against an assignee for valuable
THE JUDICIAL STATISTICS. consideration of an equity of redemption, a mortgage over other
POLICE AND CONSTABULARY. property executed subsequently to the assignment, rested upon the The total number of police and constabulary in England and Wales in sole authority of Tassell v. Smith (6 W. R. 803, 2 De G. & J. the year ending the 29th of September, 1880, was 31,488, consisting of 713). In that case one Randall in 1832 mortgaged certain free- 4 commissioners and assistant commissioners, 4 district and inspecting holds and leaseholds to certain persons who were in fact superintendents, 56 chief constables of counties, 163 head constables of trustees of a fire insurance company, and were known to Randall boroughs, 521 superintendents, 1,311 inspectors, 3,008 sergeants, 25,511 to be such, though the fact did not appear on the face of the constables, 390 additional constables, appointed for special purposes, and deed. In 1841 he mortgaged the same property to some second 520 detective officers. In the previous year the total number was 31,047, mortgagees, who gave no notice of their charge to the first. In showing an increase in 1880 of 441. The total number gives one for 1851 Randall in conjunction with one Newman mortgaged certain every 731 of the population according to the census of 1871, or one for
every 811 of the population estimated for the middle of the year 1880. freeholds and other property belonging to Newman, and also a The total increase of the police and constabulary during the ten years policy of insurance belonging to Randall, to the then trustees of ending in 1880 was 5,047. The total number given above includes 722 the same fire insurance company, who were not the same as the of the metropolitan police employed at her Majesty's dockyards, &o., parties to the deed of 1832. Newman and Randall seem not each to and 371 paid by public offices and private individuals. The cost of the have separately assigned his own property but both to have joined police and constabulary was £3,113,725 in 1880, and £3,050,671 in 1879, in making one comprehensive assignment; and it appeared on
showing that there was a net increase of expenditure in 1880 of
$55,054. The amount expended consisted of $2,412,935 for the face of the deed that Randall was only a surety for Newman. salaries and pay, $77,163 for allowances and contingent exThe mortgagees under this last deed had no notice of the inter- penses, £165,153 for clothing and accoutrements, $119,828 for supermediate mortgage of 1841, but it does not appear that this circum- annuations and gratuitics, £46,673 for horses, harness, forage, &c. ; stance affected the decision. Disputes arose, and the whole of the $250,135 for buildings, station-house charges, printing, stationery, &c.; securities were realized by consent, subject to the determination and £41,838 for miscellaneous charges. In addition to the amount before of the rival claims; and, the mortgage of 1832 having mentioned for superannuations and gratuities, which are paid under the realized a great surplus, while that of 1851 showed a great fund, which is formed by means of deductions from pay, stoppages
authority of Acts of Parliament, there was paid out of the superannuation deficit, the mortgagees under the latter deed claimed to be paid fines, a total of $142,012, making the total for superannuations and the deficiency out of the surplus on the other security. These gratuities £261,840. Each man in the force costs on an average two mortgages, be it remembered, were not legally vested in the 198 178. 8d. The expenditure of $3,113,725 on police and constabulary same persons; the last one was vested in the then trustees of the was divided as follows :-Borough police, £802,419; county constabulary, insurance company, and the earlier one was vested in the executor £1,052,583, and metropolitan police, £1,168,061 ; to which amounts the of the last survivor of the trustees to whom the first mortgage public revenue contributed the sums of £352,061, £413,763, and £451,334, had been made ; but both the mortgages were held in trust for or a total of £1,217,158, being 39.0 per cent of the whole the company. Under these circumstances this claim to consolidate
THE CRIMINAL CLASSES. was allowed by the then Court of Appeal in Chancery, consist
Depredators, offenders, and suspected persons at large, numbered ing of Lords Justices Knight Bruce and Turner. The reports 39,465, being a decrease of 1,583 from the number of that class in 1879. are exceedingly meagre, and, at first sight, the decision would of this total of 31,047 it appears that 5,572 were under sixteen years of appear to be even more monstrously opposed to justice and equity age, and 2,392 were to be found in London. In addition to those than it in fact was; but it will be seen, on careful examination, 39,465 of the criminal classes at large, there were 16,211 in local prisons, that the claim to consolidate was made and allowed only as against 10,268 in convict prisons, and 4,794 in reformatories, showing a grand the intermediate mortgage of 1841 and the representative of total of 70,738 criminals, being a smaller number by 3,079 than in
. Randall, while it was allowed that Newman might have redeemed
INDICTABLE OFFENCES. the mortgage of 1851 without in any way concerning himself with
The number of indictable offences committed in 1880 was 52,427, the mortgage of 1832, to which he was not a party. Even subject being only 20 less than in 1879. There were 22,231 persons appreto this observation, the additions made to the law of consolida. hended in respect of these offences, being 1,427 less than in 1879. Out tion by Tassell v. Smith are sufficiently noteworthy. No less of this number it appears that 5,088 were discharged for want of prosecuthan ur separate and new propositions seem to be involved in tion, 1,393 for want of evidence, 122 were discharged on bail for further its decision :-(1) That as against an assignee for value of an appearance if called on, 1,496 were bailed to appear for trial, 24 were equity of redemption (the second mortgagee under the deed of committed for want of sureties, and 14,108 were committed for trial. Of 1841) a mortgage over other property executed subsequently to the 52,427 indictable offences committed, 2,855 are classed as offences the assignment may be consolidated; (2) that a mortgage of against the person, 6,782 as offences against property with violence, land may be consolidated with a mortgage of a policy of offences against property, 1,109 as forgery and offences against the assurance ; (3) that, as against A. and his subsequent mortgagees, curroncy, and 1,708 as not included in any of the before-enumerated a mortgage made by A. alone may be consolidated with a mort- classes. There were among the offences against the person in the year
“ for &
1880, 131 murders, and 70 attempts to murder, 664 cases of shooting seek it elsewhere in a different shape. And the latter very practical at, wounding, &c., 257 of manslaughter, 129 of concealment of birth, class of persons are not attracted by remarks of the following type :127 of unnatural offences, 244 of rape, 385 of assaults with intent, and 636 “ Restrictions on the disposing power of owners of property are disassaults. There were 3,627 cases of burglary, and 2,508 of house-breaking, couraged for the highest political reason-namely, that if the acquisition &c., and 35,252 larcepies. Of the 131 murders no less than 73 were com- of property were not freely permitted, anarchy would probably result” (p. mitted on children one year old and under, and there were 966 attempts at 245). The language perhaps aims too visibly at originality, and its suicide. In respect of the 2,855 offences against the person, 2,916 persons novelties are not always pleasing. The statement of the rule in Shelley's were apprehended, and of this number 664 were discharged on being case, p. 231, is longer than Fearne's; and such phrases as brought before the magistrates, and 2,252 were held to bail or com- terminable period, not being a chattel interest,” are hardly better than mitted.
the phrase * for life." We gather from Mr. Mackay's preface that the SUMMARY CONVICTIONS.
book was intended in some degree to prepare the way for the formation The total number of persons proceeded against summarily in 1880 of a code : a fact which perhaps explains its departure from the lines of was 663,404, of whom 517,373 were convicted and 146,031 discharged. the ordinary text-book. We agree with him that “a good code is This shows an increase over the previous year of 11,092 persons sum. greatly to be desired "; but we feel even greater doubts tban himself as marily convicted. Among the punishments imposed on these 517,373 persons
to the probability of our getting such a thing. summarily convicted, 53,323 were imprisoned for fourteen days or less, 91 for more than six months, and 49,222 for periods varying from fifteon days to six months ; 1,293 were sent to reformatory schools, and 2,411 to industrial schools ; 348,412 were fined, and 2,621 were whipped. As compared with 1879 the summary convictions in 1880 show an increase
CORRESPONDENCE. of 11,092, but the number proceeded against shows an increase of 22,366, and the number discharged an increase of 11,274. The persons apprehended for indictable offences and those summarily
THE TICKET CLIPPING CONTROVERSY, proceeded against are classed as follows :—19,475 known thieves, 24,513
[To the Editor of the Solicitors' Journal.] prostitutes, 30,323 vagrants, tramps, &c., 43,579 suspicious characters, 37,940 habitual drunkards ; 314,168 were of previous good character, and
Sir,-I was present last Wednesday at the hearing of Courfield v. The
Great Eastern Railway, before Mathew and Cave, JJ., when the judges the character of the remaining 215,637 was unknown.
decided that the act of presenting a ticket to be clipped at the barrier of
a station constitutes a user thereof. From their remarks during the APPEALS AGAINST JUSTICES' CONVICTIONS.
hearing, as well as from their judgment, they seemed to have been haunted There were 111 appeals in 1880 from the decisions of justices in throughout by the idea that on this occasion there was a question of the summary proceedings ; in 55 of these cases the convictions were affirmed right of the railway company to clip tickets, whereas that point was not and in the remainder quashed. In 1879 there were 152 such appeals, of raised by the plaintiff; and this notion seems to have biassed their decision. which 57.2 per cent. of the conviction were affirmed and 42:8 quashed. Mr. Winch, the plaintiff's counsel, contended (rightly as I think) that
this could not be, and pointed out that the result of such a decision would CORONERS' RETURNS.
be that the travelling public would be placed entirely at the mercy of the Returns sent in by coroners of the inquests held and the verdicts railway companies, and he gave a striking example. Supposing, argued thereon show that there were 26,588 inquests held in 1880. Iu 157 the he, a man to take a ticket for a long distance, say to Edinburgh, and after verdict was murder, in 152 manslaughter, in 6 justifiable homicide, in having his ticket clipped and going on the platform, to discover that he 1,930 suicide, in 10,807 accidental death, and in 19 " executed”; other had left his bag behind in the waiting room; if he went back for it and verdicts such as found dead," "excessive drinking,” “disease aggra- tried to return to the platform with his clipped and therefore used ticket, vated by neglect," and " want, cold, exposure,” &c., make up the total he would, on presenting it, come under the penal clause in the company's of 26,588. In 1879 the number of inquests was 27,056. The bye-laws, which subjects anyone trying to avail himself of a used ticket verdict of murder in the case of infants of one year old and under to prosecution, or, if they did not go to that length, he could be refused was returned in 87 instances, and 51 of this number were in the permission to travel without paying his fare over again. The railway county of Middlesex, the inquests held on children one year old companies might not choose to exercise this right, but they would have and under numbered 4,994, and those on children above one year and the power to do so all the same. If the learned judges ever forget things under seven were 3,131, making a total of 8,125 inquests on children or leave bags behind, they may be able and willing to pay £2 or £3 for under seven years of age. Although the number of inquests was in 1880 the privilege of recovering their property, but I assure them the general less than in 1879, the total cost was greater, and the average cost of each public cannot. inquest of course greater. The total cost in 1880 was £86,842 13s. 5d., The learned judges refused an appeal on the ground that the case was and in 1879 £86,333 18. 7d., showing an average of £3 58. 3d. per too trivial and that it involved no principle. If that be so, from which inquest in 1880, and of £3 38. 9d. in 1879.
opinion I most respectfully differ, why then was a new trial directed in a question of only fivepence ?
I may add that I have no personal interest in this particular case, but there is a principle in question, and that is my reason for requesting you
to allow this letter to ocoupy some of your valuable space.
W. H, STOKER.
LAW OF PROPERTY.
In the Court of Referees on Locus Standi in Committee Room 12 of the The critic of a work having so large a scope finds himself compelled House of Commons, on Monday, Mr. Clerk, Q.C., on the part of the Parliato avoid details, and to speak of it in general terms. There is a good mentary Bar and agents, said he was charged to convey to Mr. Rickards, deal of freshness and originality about its style which makes it a credit Speaker's Counsel, on the occasion of his last sitting there, an expression of able addition to the legal library. The huge extent of its subject--for regret at his retirement and of hope for his fature welfare. Mr. Rickards had the law of property, so far os regards the purpose of which we speak, acted for more than thirty years as Speaker's Counsel, and since 1865 had also is practically co-extensive with the law-may perhaps be an obstacle to acted as permaneut member of the Court of Refereos, whose decisions its success with those practitioners who value a book in proportion as it is code. The result was uniformity and certainty in an important class of cases
mainly by his guidance and influence, bad grown into something like a, a mere exhaustive list of the cases. A single volume cannot possibly affecting the right of petitioners to be heard, where before there used to be treat the whole subject in the only way which is acceptable to those great divergency of view among committees; now petitioners knew what persons. And we should hardly suppose from its method that the book principle would govern their respective cases, and much time and money is intended to minister to the needs of students, to whom it does not were thereby saved to the parties in private Bill legislation. Mr. Pemberton, seem to be very well adapted. Its length, if not more than what is M.P., the chairman of the court, expressed the unanimous regret which the good for them, is more than any but the exceptionally diligent could colleagues of the Speaker's Counsel felt at his retirement from that tribunal. digest. And it contains a formidable list of addenda et corrigenda, Tne members of the bar and the parliamentary, agents who were present exteuding to more than twenty-seven very closely printed pages. Stili rose during Mr. Clerk's address and also during the reply of Mr. Rickards, ve think that both practitioners and students might gain a good deal in who acknowledged with deep feeling the compliment paid to him. He was the clearness and breadth of their view of the law by a perusal of the retiring, he said, at a time of life when both physical and mental powers book. It possesses considerable merits, and contains a great deal of were not likely to become more vigorous. But he was not retiring to a information which, so far as we have examined it, seems to be correct others. He expressed the satisfaction he had felt, after his retirement from
life of idleness and vacuity, and hoped still to be of some little use to in its details. The great defect is a certain want of adaptation to prac- the bar, at being brought into contact, as a member of that court, with some tical needs. For example, the information given at p. 372 upon the of the most eminent members of the bar; and he expressed also his acknowgeneral subject of barring entails is open to the objection that the ledgment to the present members of the court and their predecessors with student would not understand it, while the practitioner would prefer to whom he had worked with such constant harmony.
It had been suggested that the son was an ignorant man; there was no proof CASES OF THE WEEK.
of it ; that he believed he was conveying his own interest ia the property ; that was not proved ; and that it should be assumed that the deeds were not
read over to him or properly explained to him. The evidence on this point FORGED DEED-FRAUD- PERSONATION MIDDLESEX REGISTRY ACT was very vague. But there was a legal presumption that a man knew the -CONVEYANCE BY HEIR-AT-LAW OF TESTATOR WHOSE WILL HAS NOT contents of a deed which he executed, and that presumption could not be reBEEN REGISTERED-PURCHASER FOR VALUE WITHOUT NoticE-ORDER butted by a mere assertion. Looking at the surrounding ciroumstances, bis FOR DELIVERY OF TITLE DEEDS-PARTIES—TRUSTEE AND CESTUI lordsbip was satisfied, not that the son knew the exact words of the mortgage QUE TRUST-Costs APPEAL-Oed. 16, R. 7-ORDER 55.- In a case deeds, but that he knew that the solicitor believed that it was ļthe father who of Cooper V. Vesey, before the Court of Appeal on the 31st ult., a was conveying. His lordship therefore agreed in the conclusions of Kay, J., question arose as to the effect of a conveyance of land situate in that the son did personate the father, and that the mortgage deeds Middlesex by the heir-at-law of the deceased owner, whose will, by were false deeds and forgeries, and passed nothing to the mortgagees. which the land was devised on trust, had never been registered, to a COTTON, L.J., said that the mortgage deeds purported to be the deeds, not of purchaser for value without notice of the will, who believed the heir to be the the son, but of the father, who bore the same names, and had the same descripdeceased orner, it so happening that the names and descriptions of the tion, and his lordship could, on the facts,cometo no other conclusion than that the ancestor and the beir were identical. The question arose thus:- Thomas son intended to represent to the solicitor tbat the mortgage deeds would be the Frederick Cooper, who was a watchmaker, carrying on his business at No. 6, deeds of the father. There was nothing to show the solicitor that he was the Calthorpe-street, Gray's-inn-road, died on the oth of March, 1863. He had heir of his father, and the reasonable conclusion which any one would have some freehold and leasehold property situated in Middlesex, which he had him. drawn was that he was himself the T. F. Cooper in whom å title was shown self purchased. By his will, dated the 10th of October, 1861, he appointed bis by the instruments which were produced. And under ordinary circumstances widow, and one of his daughters, and also bis eldest son and heir-at-law, a man must be taken to intend that which would be the reasonable conclu. Thomas Frederick Cooper, the younger, and another son, C. S. Cooper (when sion from his acts. If the son had intended to act as the agent of his mother tbey should attain the age of twenty-one), executors and trustees of his will, and sister in procuring the mortgages, he would not have taken to the solicitor devising and bequeathing his property to them on certain trusts for the benefit only the muniments of title which were prior to the will. He must be of his widow and children. The will was proved on the 24th of April, 1863, taken to have executed the mortgage deeds as the deeds of the person whom by the widow and the daughter alone, power being reserved to the sons to he had shown to have a title to the properties by the deeds which he had proprove thereafter. This they never did. The will was never registered in the duced. He must be taken to have committed a forgery, e., to have executed Middlesex Registry. T. F. Cooper, the son, attained twenty-one on the 9th forged instruments for a fraudulent purpose. He may not have thought he was of December, 1863. Ho carried on his father's business as a watchmaker at committing forgery, but he must bave known he was doing a fraudulent act. the place where the father bad carried it on, and he also managed bis father's The deeds must be treated as forged deeds, and could convey nothing to the trust estate. In July, 1866, be was allowed by his mother and sister to draw mortgagees. No title could be obtained under the Middlesex Registry Act, £1,200 out of the father's trust moneys to enable him to purchase some shares because the deeds purported to be the deeds of the father, not of the heir. It in a company, called the Carnarvonshire Slate Company, of which his father had been urged that the title deeds which had been deposited with the mort: bad been, and of which he himself was, a director. He then signed a memo. gagees by the son, who was a trustee and executor of the father's will, could randum, which was expressed to be made between the executors of the late not be taken away from them. But the legal owners of the deeds were coming T. F. Cooper and himself, by which he agreed that the whole of his interest in to a court of law and equity, on the ground that an attempt had been made answerable for the sum thus drawn out him. In to
v. Drummond (14 Ves. 353, 17 Ves. 151), which was an application to a court his shares in the siate company, but he did not make any application to his of equity by two executors to compel bankers to deliver up some bonds of the mother and sister for it. He had in his power the key of the box in which testator which had been pledged with them by two co-executors of the the title deeds of his father's freehold and leasehold property were kept, and plaintiffs, and the court refused to grant the application, because the plain. in that way he possessed himself of those deeds. He obtained an introduction tiffs had by their conduct enabled their co-executors to deal with the bonds. to a solicitor, with whom he was not previously acquainted, and took the deeds LINDLEY, L.J., said that if there had been no leasehold property, the son to bim, telling him that he wanted to borrow £5,000 on the security of the being heir-at-law to his father, and the will not having been registered, the properties comprised in the deeds. He did not inform the solicitor of his mortgagees might, perhaps, have got a good title unde tbe Registry Act, on father's death or of bis will, and the solicitor believed him to be the person whom the ground that the son was dealing with the property as heir-at-law. But he the deeds showed to have a title to the property comprised in them. The soli- could not make any title to the
leaseholds except through the will. The citor searched the Middlesex Registry and found no record of any dealing with the inference was, therefore, irresistible that he was passing himself off as his different properties since the respective conveyances to the father. The solicitor father, as the owner of the freehold and leasehold property comprised in the then agreed to lend £3,500, of which £2,000 was to be advanced by himself title deeds, which
he could be only on the theory that he was the person whom on a mortgage of part of the property, and £1,500 by a client on a mortgage those deeds showed to have a title. According to The Queen v. Ritson (L. R. 1 of the remainder of the property. Two mortgage deeds were accordingly C. C. R. 200), the son could have been indicted for forgery. It had been prepared—the one to the solicitor, the other to the client. The deeds con urged that the widow and danghter had been guilty of negligence in not tained recitals that the mortgagor was seised in fee of the freehold properties, registering the father's will. In one sense, no doubt, this negligence had led and entitled absolutely to the leasehold properties for the residues of the to the commission of the fraud. But the authorities, such as the The Bank of terms for which the same were respeotively held. The deeds were both Ireland v. Evans (5 H. L. C. 389); Baxendale v. Bennett (26 W. R. 899, executed by T. F. Cooper (the son) as mortgagor, his name, as already L. R. 3 Q. B. D. 525); and Johnston's Claim (19 W. R. 457, L. R. 6 stated, being identical with that of his father, and his desoription in the Ch. 212), showed that it was not sufficiently the proximate mortgage deeds being identioal with that of his father in the deeds of con- to make the plaintiffs responsible for the fraud. reyance to bim. The mortgage money was paid to T. F. Cooper (the son), A question also arose as to costs. The plaintiffs had made some and be applied it to his owo purposes. His mother and sister know nothing of the beneficiaries under the will defendants to the action, and of the transaction till after bis death in Jangary, 1880. The mortgage deeds Kay, J., had ordered the mortgagees to pay the plaintiffs' costs of were duly registered. The mortgages were afterwards transferred to other
the action, and also the costs of the beneficiaries. The Court of persons. The solioitor died in 1879. On the death of T. F. Cooper (the Appeal held that the beneficiaries ought not to have been made parties, Bon) the fraud was discovered, and this action was brought by the mother and that, therefore, the mortgagees ought not to have been ordered to and daughter, as executors and trustees of the father, against the mort. pay their costs, and they varied the order of Kay, J., in this respect. gegees, claiming a declaration that the mortgages were void as against JESBEL, M.R., said that under the present practice trustees represented their them, and an order for the delivery ap of the title deeds. Kay, J. bela cestuis que trust in a litigation with strangors, and the cestuis que trust ought that T. F. Cooper (the son) had intended to personate his father, and that not to be made parties. The allowance of their costs was not a matter in the Consequently the mortgage deeds were in effeot forgeries, were in truth no
discretion of the court, and it could, therefore, be appealed from. The costs deeds at alí (except as against T. F. Cooper,
of the plaintiffs, however, were in the discretion of the court, and there could through him), and passed no interest to the mortgagees. cordingly declared the mortgage deeds void as against the plaintiffs and the ship thought that the present case was peculiarly one in which the discretion other persons interested under the will (except T. F. Cooper, the son), and of the court should have been exercised in punishing the plaintiffs
for their ordered the title deeds to be delivered op to the plaintiffs. The Court of carelessness by depriving them of costs. For this reason, as well as because a Appeal (JESSEL, M.R., And COTTON and LINDLEY, L.JJ.), affirmed the variation had been made in the order, no costs of appeal would be given to decision. JESSEL, M.R., said that the question to be decided was a very
the plaintiffs.-SOLICITORS, Newman, Jeans, & Co. ; Lewis & Lewis ; Allen singular one-piz., whether a deed which purported to be executed by
8 Edwards. T.F. Cooper, and which was executed by a person of that name, was or was not a false deed, and the court was, by reason of the death of the son and SETTLED ESTATES Act, 1877 (40 & 41 Vict. c. 18), s. 4, SUB-SECTION 3– the solicitor, compelled to arrive at a conclusion opon indireot evidence- LEASE OF A MINERAL-SALT WORKS-BRINE.—Upon a petition presented i.e., by inference. It was clear that T. F. Cooper (the son) under the Settled Estates Act, 1877, In the Matter of Dudley's Settled Estates, knew all about the trust. The question was whether when he signed th
before Vice-Chanoellor Hall on the 31st alt., a question arose as to the mortgage deeds he was personating his father. If he was, the deeds were application of sub-section 3 of section 4 of the Act, which provides that, forgerier. If he was signing the deeds in his own name, other considerations where the lease to be authorized is “of any earth, coal, stone, or mineral," would arise. The evidence was, to his lordship’s mind, conclusive. It was a certain proportion of the rent or payment reserved shall be set aside and plain that the son took the deeds to the solicitor as his own title deeds. invested to form part of the capital of the settled estate. In the present The solicitor must certainly have asked him whether he had incambered the case the proposed lease was of certain salt works in Cheshire, forming part property. He must have known that the solicitor was treating him as the of the settled estate, and the question submitted for his lordship's decision owner. Again, it was manifest to anyone who read the mortgage deeds, or was whether or not the salt was a mineral within the meaning of the to whom they were properly explained, that they purported to be the deeds of statate, so as to make it requisite to provide for setting apart and investing the father; that it was the father, not the son, who was purporting to convey the due proportion of royalty reserved. It appeared from the evidence