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inventory thereto annexed or therein referred to, is to be filed, in
II. provisions for a register to be kept containing an abstract of the
We saw last week that the administration costs falling on the contents of every deed registered ; for the inspection of this register residuary personal estate include the costs of construing the will by the public; and for the transmission of particulars to the county and the costs of ascertaining the persons entitled under the will. court of the district where the debtor resides or carries on business. We have now to consider what those costs do not include, and There is also a proposal (clause 11) that, where a deed of arrange- upon some parts of this branch of our subject it is by no means ment has not been registered, and the debtor afterwards obtains credit to the
extent of £20 or upwards from any person within two easy to extract from the cases definite rules of practical value. years from the date of the deed, without informing such person of
(5) The administration costs falling on the residuary personal the nature and effect of the deed, he shall be guilty of a mis- estate do not include :demeanour as under the Debtors Act, 1869. We have never con- (a) The costs of determining questions arising with regard to, and cealed our preference for a system that would invite registration by relating exclusively to, a legacy or trust fun tofter it has been “severed empowering an overwhelming majority in number and value of from the bulk of the estate."" Such costs will fall on the legacy or creditors to bind an insignificant minority to a reasonable arrange- trust fund exclusively (Jenour v. Jenour, 1805, 10 Ves. 562, 571 ment; but we are ready to admit that the mind of the general Wilson v. Squire, 1842, 13 Sim., at ,\ 213; Martineau v. Rogers, public is scarcely open to allow so serious an inroad on the privciples 1856, 8 De G. M. & G. 328). "as to the costs," said Lord Eldon of the present Bankruptcy Act, whilst there is undoubtedly a in Jenour v. Jenour, “there is a distinction between this and the strong feeling in favour of compelling the publication of arrange- ordinary case of costs out of the estate ; for, though it is true that ments entered into by debtors with their creditors outside the rule prevails where a question arises between the individual and provisions of the Act. But, seeing that the arrangement clauses of the person taking the bulk of the estate, how far the bulk of the the Act have proved a failure, we have little doubt that the enact- estate is to answer for a legacy, a sum of money, or a portion ; yet, ment of any system of registration of deeds will ultimately lead to if there is no question between the latter and persons claiming the adoption of the principle we have all along advocated, as it against him the bulk of the estate; but after he has paid out of is very clear that something must be found to take the place of the the bulk, and done all that is incumbent upon him, a question abortive system of arrangements provided by the Act. We do not, arises as to the interest in that property, clearly severed from the therefore, see anything to be gained by the limitation of the pro- bulk, the expense of questions touching that fund ought to be posal of the Bill to trader debtors, thus reintroducing the distinc- thrown upon the fund itself” (10 Ves., at p. 571). tion abolished by the Bankruptcy Act; nor, in view of the fact
But, in order that this rule may apply: that unregistered deeds are to be wholly void, can we approve of (1) The legacy or fund must be clearly severed from the bulk of the penal proposal of clause 11. Of the other provisions, however, the estate. The meaning of the rule has been said to be that, “if the we can express a general approval—not by any means as a probable executors, admitting the legacy to be payable, sever it from the settlement of the question, but merely as a stepping-stone on the estate, and a dispute afterwards arises between the persons to way to some settlement. But it is not unlikely that creditors, when whom, or some of whom, the legacy belongs, and the court has to they understand that the effect of the Bill will be to expose them- decide to whom it belongs, there the particular fund bears the selves to being published from time to time in lists of creditors in costs; but, if the dispute arises between the persons claiming the the columns of certain trade journals, may not be quite so favour-legacy and those claiming the estate or residue, whether the legacy able to the proposal.
is payable or not, that cannot be the case of a severance in the sense in which the rule applies,” because there, until the question
is determined whether the legacy is payable, it is not severed from WE CHRONICLE elsewhere the death of Mr. JOSIAH W. Smith, the estate ; the executors have kept it under their control for the Q.C., a learned ex-judge who was for many years the MALINS purpose of having the point decided (Atlorney-General v. Lawes, of the county court bench. Like the lamented Vice-Chancellor, 1849, 8 Hare, 32, 43). It follows that the mere fact that the
à, very learned lawyer, but very impatient of that particular amount of a legacy has been paid into a parservile deference to legislation and to the decisions of the ticular bank, or placed in certain custody or carried to a (so-called) superior courts which superstitious profession particular account until the question of the ownership is usually expects of a judge. As he expressed it in the draft decided, does not per se take the case out of the ordinary rule
" Act for giving greater effect to the true principles (Attorney-General v. Lawes). Thus, in Dugdale v. Dugdale of judicial decisions” which he promulgated in 1877, and de- (1849, 12 Beav. 247), although a legacy for a class of next of kin sired to be made public throughout the length and breadth directed to be raised out of the real estate had been raised and of the land,"
"all cases in litigation, other than cases of con- carried to a separate account in the suit, costs afterwards incurred struction,” should, “in the discretion and to the best of the in ascertaining the class were ordered to be paid out of the general judgment of the judge or judges deciding the same, be decided, estate. so far as may be, according to Justice, Moral Right, and Public The test seems to be, have the executors, as such, lost all Policy.”. Accordingly, the learned judge for many years pursued dominion over the legacy or trust fund ? If they have not, the his judicial way guided by these admirable principles. But from rule does not apply. Where, for instance, a testatui bequeathed a time to time he found a grievous stumbling block in the shape of fund to trustees on trust, to pay the interest to a tenant for life, what he called the “court above,” which obstinately refused to without any bequest of the corpus, or with a bequest thereof of recognize “justice, moral right, and public policy," "as interpre- doubtful validity, so that the corpus might ultimately become part ted by bim, as a proper ground of decision. The resources of of the residuary estate, the corpus of the fund will be regarded as civilization, however, were not exhausted, and by means of “ a assets of the testator's estate unadministered, ultra the life estate, stereotyped form of reply refusing applications for leave to and the costs of a suit to determine the construction or validity appeal, he sought to remove the stumbling block out of the way. of the gift will fall on the residuary estate (Pennington 1: But in 1870 the use of this stereotyped form, together with some Buckley, 1848, 6 Hare, 451). observations which he made contemplating the possibility of the debts are unpaid," said Wigram, V.C., in that
“The payment of a legacy while
case, “ court above" deciding “contrary to justice and common sense,' drew down upon him the thunder of the Queen's Bench Division, transfer of the stocks by [the executrix] to the trustees furnished
a just inference that there are assets to pay debts. But the and shortly afterwards he retired from the bench. ashes! He meant to do even-handed justice, and we have always for purposes having priority over the claims of the residuary
Peace be to his no inference that the residue of the stocks might not be wanted doubted whether the Queen's Bench Division treated him quite legatees. Something more, therefore, as it appears to me, tores fairly. The result of his “stereotyped form of reply prevent the successful suitors in his courts from being harassed by to say that this portion of the testator's estate was so completely appeals in matters of very small pecuniary value, and we are not administered and separated from the testator's general estate, and at all sure that he was wrong.
transferred to themselves, that the personal representative of the
Hling on the ng the will er the will
, and y no means
gard to, and zen “serered me legacy or F. 562, 571 45. Rogers,
Lord Eldon Enis and the
is true that ividual and bulk of the
ms claiming paid out di
a question ed from the
ught to be
May 7, 1887.
THE LAND TRANSFER BILL.
IV.—THE INSURANCE FUND (Continued).
difficulty in the Land Registry has been the description of estates. It is, of course, clear that, after a trust fund has been actually Every estate must have its map and its tracing; every map and placed in the hands of the trustees thereof by the executors, tracing must be made to a certain scale from a public map; when such trustees being different persons from the executors—it is made it must be passed by the Surveyor-General ; weeks are someto be considered as severed from the bulk of the estate, so as to times spent in correspondence over little points raised on these make the rule we are now considering applicable (see the decree maps which to an ordinary purchaser on the spot would be exin Jenour v. Jenour, 10 Ves., at p; 573). The difficulty arises plained away in ten minutes. (It is not quite clear what is the where the executors are themselves also the trustees of the fund. object of this extraordinary care under Lord Cairns' Act, considerWill their assent to the trust bequest (whereupon they forthwith ing that that Act does not profess to register boundaries, but it is become trustees : Dix v. Burford, 1854, 19 Beav. 409) constitute the case notwithstanding). Here, again, we see the fatal effect of such a severance of the trust fund as to make the rule as to costs the cast-iron system hitherto adopted. A mistake in a map may apply? In Dix v. Burford it was laid down that “the moment deprive someone of his land ; therefore all maps must be examined the executors assented to the bequest [of £400 to themselves in by the Surveyor-General himself, and compared with the office trust] they became trustees for their cestuis que trust; the £400 maps in all their minutest particulars, and sent back for correction then ceased to be part of the testator's assets, and it became a trust or explanation wherever the smallest inaccuracy or doubtful point fund for the benefit of the plaintiff for life, and afterwards for his
In Australia the office has all this work done for it by children, and the executors became mere trustees for them of that "licensed surveyors." These are local surveyors who have passed fund.” It would seem, therefore, that, on principle, the assent of an examination and are authorized to act for the office, charging the executor to a bequest to himself in trust would be a sufficient very cheap rates, in all matters of mapping. Their maps are severance to throw costs subsequently arising, with regard to handed in, signed, with the application, and the office accepts them questions relating exclusively to the trust fund, ypon such fund; ordinarily without delay or question. This system leads to occabut we have not been able to discover any reported authority upon sional inconsistencies and mistakes, but they are compensated out the question. And, considering the comparatively slight circum- of the insurance fund, and business meanwhile proceeds rapidly. stances from which an assent by the executors to hold as tristees This delegation of important duties would be impossible were the may be implied, it may perhaps be doubted whether an implied boundaries thus delineated to be past the possibility of correction, assent would be held to constitute a sufficient severance for the and conclusive even against unconscious third parties without purposes of the rule as to costs which we are now considering compensation in case of error. There is a collection of twenty-two This is a point of considerable practical importance, and, consider. mistakes made by licensed surveyors during the first five years of ing the frequency with which the question must have arisen, it is the South Australian Registry. They are in a return to the surprising that (so far as we can discover) it is not covered by Legislature of that colony made in 1864 (Papers—House of authority
Assembly—Return, vol. 3, 1864, p. 173). They include specimens It is to be observed that, in the reported cases in which a legacy of every error that can be imagined almost. All these mistakes or trust fund has been held to be severed from the bulk of the were found out and corrected before any harm came of them. testator's estate for the purposes of the rule as to costs, a con- These Australian reports and returns throw a curious light on siderable period had elapsed since the testator's death. Thus, in the subject in various ways. In England it is a commonplace to Jenour v. Jenour (ubi suprà) the trust fund had been for seventeen say that the work of delineation of boundaries must have been years out of the hands of the executor (see 10 Ves., at p. 573); greatly simplified in Australia by the uniform Colonial Governin King v. Taylor (1801, 5 Ves. 809) part of the legacy had been ment surveys which existed in all cases, instead of our defective paid over to tắe legatee five or six years before the hearing; and and irregular tithe and other maps (the report of Mr. O. Morgan's in Martineau v. Rogers (ubi suprà), also, about eight years had Committee, 1879, p. 5, is very great on this). In the Colonies elapsed from the testator's death until the hearing of the case. themselves it is an equally common remark that the registered Some stress appears to have been laid on this circumstance
in descriptions will never be satisfactory until something like the Jenour v. Jenour (ubi suprd), but it is considered that it is really excellent English tithe maps are constructed to supersede the immaterial, the only question is, Have the executors, as such, grossly inaccurate Government surveys (South Australia—Parlialost all dominion over the fund ?
mentary Papers, 1861, vol. 3, No. 192, Report 13, for one out of (2) The question with regard to which the costs are incurred many references that might be given). must relate exclusively to the interest in, or ownership of, the legacy If the insurance system can be so applied in practice as to or trust fund; it must not be a question between the person claiming render the registration of absolute titles as easy as the acceptance such legacy or trust fund and the persons claiming the bulk of the of titles on sales by ordinary purchusers, and also the registration estate as to the amount of the legacy or trust fund, or as to whether of boundaries and their subsequent manipulation and alteration, it is payable at all (Jenour v. Jenour, ubi suprà, p. 572; Hill v. especially on sales in lots, at a reasonable expense, it will, no Rattey, 1862, 2 J. & H. 634, 647). The practical test appears doubt, entitle those who
have introduced it to claim that they have to be: Does the question affect in any way the residuary legatee ? done a good deal. Whether such a result is possible, however, ex
perience only can decide. In a similar manner it seems possible Shadwell, V.C., added another qualification-viz., that if the that the insurance fund might be utilized to render the verificaquestion arose as to the construction of the bequest of the legacy tion of instruments easier than it is at present, and to furnish laidinit down, in Wilson v. Squire (mbi supràs, that
, if the cessation of charges, and even to reduce the magnitude of in fund is separated from the bulk of the testator's estate
, and that standing rock—the foreclosure of a mortgage. These matters then a question arises about it, the fund pays the costs. But if we may, perhaps, revert to at a subsequent date.
4. The limits of reliance on the insurance fund.—It will that question is raised by the testator himself, and his estate must probably have occurred to some, in perusing the last section, that bear the costs; for a testator's estate bears the costs of all
the the office may now begin to be tempted to err on the side of careNuestions that arise on his will respecting it." It is submitted, lessness, and to rely too much on the compenfation principle. It quod has been severed as above described, it is immaterial that the tinctly desire to obtain the definite plot of land that he has question with regard to which the costs are incurred is occasioned bought
, and that, however satisfactory it may be in Australia
to by the ambiguity of the testator's will
. Both in Sendur v. Senour receive only a certainty of money damages in case of loss, yet decided were on the construction of the will. leic auprd) and Martineau V. Rogers (ubit suprds the question. That in England something more than this will be required to
meet the necessities of the case. This objection is a weighty
e questio tered the trol for the 77. La
one, but there are considerations which enable it to be answered | framers of the Bill have failed to express their intentions, or bave with some confidence. Let us divide the possible sources omitted to make necessary provisions ; because, if this be so, the of error, as we did before, into (1) first registrations, and (2) defects will no doubt be remedied by those charged with the conregistered dealings. In first registrations it is tolerably clear that duct of the measure directly their attention is called to them. Our neither a whole estate, nor any material part of it, could be regis- object has been different. It has been to try and lay before our tered wrong without fraud. Now careful inquiry has shewn that readers the broad effect of the proposals now intended to be made, even the slight degree of publicity created by deed registries has on the assumption that they will in the end be expressed with sufficed to exclude fraud entirely from the counties of Middlesex accuracy and completeness, and will be enacted by the Legislature. and York; therefore, it may be expected that the considerably We understand th it the Council of the Incorporated Law Society greater publicity attending all applications for first registration and the Bar Committee have both been requested by the Lord will exclude it also. Passing from fraud to mistake, the only Chancellor to report upon the Bill, and that remarks and suggesmistakes possible will be from dormant claims—a risk which tions from individual conveyancers have also been invited. It is (judging by the common conditions of sale now submitted to) possible that both the Bill and the Land Transfer Act of 1875, purchasers are now content to run, even without an insurance which it enforces, may receive much alteration in the passage of fund, and small errors as to boundaries which the ordinary pur- the measure through Parliament. Further, there are the rules still chaser, again, is usually content to buy in the auction room subject to be published, on which much of the practical effect of the to a condition making them matter of compensation merely. At system will depend. any rate, as a wide discretion in the matter will probably be given We propose, then, to defer making more detailed statements as to the board, it will not be difficult to correct any tendency to to the eration of the measure, as a whole, until more information undue indulgence as soon as its effects are complained of. is before us. It will be remembered that clause 2 leaves the apSecondly, as to the probability of errors in registered dealings. If plication of compulsion entirely subject to orders in council, and the Australian practice is copied in this matter, which by all that clause 47 enables such orders to be revoked and altered. So accounts is quite facile enough for business purposes, we may that the passage of the Bill into law will not involve or authorize expect to suffer no more from fraud or error than the Australians any step utterly beyond recall. have hitherto done. Now the Australian statistics give no instance of a registered purchaser yet losing the substance of his purchase; and, as to mistakes in details, the figures given in our last issue but one shew that the extent of the risk incurred by a purchaser
CORRESPONDENCE. of having to accept money compensation only as to a portion of the land purchased has hitherto been somewhere about Totoro.
THE LAND TRANSFER BILL.
[To the Editor of the Solicitors' Journal. I V. -THE LAND TRANSFER BOARD.
Sir,—There seems to be a chance of this Bill, with its compulsory Besides adding to the Land Transfer Act of 1875 the three im- clauses, being hurried into law, and I would suggest that such clauses portant practical features of (1) compulsion, (2) confirmation of should not come into force for, say, five years from the passing of the titles and boundaries, and (3) an insurance fúnd, 'the present Bill Act. This period would be sufficient to shew how the Act would makes (4) an administrative change. The present office of land work and in what respects it might, with advantage, be amended registry is “ conducted by a registrar appointed by the Lord Chan- Judicature Acts and their endless rules, and of the trifling value of cellor, with such number of officers as the Lord Chancellor (with the advantages gained by the changes
made, it seems desirable that the concurrence of the Treasury as to number) may from time to no such radical Change as that proposed with regard to land transfer time appoint.”—such registrar being a barrister of ten years’ stand- should be made without ample time being allowed to test the value ing, and the assistant registrar being a barrister or solicitor or of the scheme.
B. certificated conveyancer of five years' standing (section 106 of the Act of 1875), thus practically excluding all but professional lawyers from influential posts. The new Land Transfer Board will consist " of a registrar-general, a chief examiner of titles, and an
NEW ORDERS, &c. assistant registrar, appointed by the Lord Chancellor” (Bill,
SUPREME COURT OF JUDICATURE. clause 1). There is no provision for increasing the numbers of CONVERSION OF INDIA FOUR PER CENT STOCK the board, nor is any professional qualification expressly required
Saturday the 30th day of April 1887. for membership, or indeed for either of the three named posts. Whereas the Secretary of State for India in Council has by a notice The memorandum prefixed to the Bill also definitely states that dated the 19th April 1887 stated that he is willing to grant in era the board is intended to comprise“
persons of experience in or change for India Four pounds per centum stock and India Four pounds ganization and administration as well as in conveyancing." per centum stock certificates a like amount of India Three pounds ten
Now, although the terms of the memorandum have created in shillings per centum stock and India Three pounds ten shillings per some quarters an impression that the professional
lawyer will have centum stock certificates respectively and that the holders of India Four but a small voice in the deliberations of the board, yet, when the be his offer will receive on the oth July 1887 a payment
of One pound provisions of the Bill are considered, it would seem more probable twelve shillings and sixpence per centum on the amount of stock.de that he would have a good working majority of two to one ; and stock certificates surrendered being a quarter's interest at Four pounds that the new board will differ but little from the old staff. For per centum per annum to that date and Ten shillings per centum per the old staff practically consisted of the registrar and assistant registrar, with the advice, on conveyancing matters, of either one And whereas by the said notice it is required that the holders of or other of the two examiners of title ; the new board will
consist India Four pounds per centum stock or stock
certificates should signify of the chief examiner of titles, who obviously must be an ex- their assent to the Secretary of State for India in Council and that perienced conveyancer, and of the registrar and his assistant, of such assents must be delivered at the ofice of the Chief Accountant of whom it is at least unlikely that both will be laymen. Still the the Bank of England on or before Wednesday the 1st June 1887, fact should be observed that the casting vote on the board (on is now standing to the account of the Paymaster
General on behalf for which much that is of importance to persons transacting
business the Supreme Court of Judicature at the Bank of England and it is for with land will depend) will be determined accordir as it is the advantage of the persons interested in that stock that it be como thought right or wrong to select both the registrar and his assistant, verted into a like amount of India Three pounds and
ten shillingspoort or only one of them, from persons unacquainted with conveyancing centum stock in accordance with the said notice and it is also expediente Both the Act of 1875 and the present Bill contain provisions for their remades opent for fore she ket Funtecates should be converted in like
that any amounts of India Four pounds
per centum stock and India establishing local registries and delegating duties to local officials. We have now passed in review what we believe to be the most directed by the deti hao ile helis vandenter o tenerconversion into India Three
Now I do order that the Paymaster General do manner upon incidental matters, in which it has appeared to some that the Fillings tper sentimento e certificates respectively in accordance with important practical points in the Bill. We have avoided dwelling pounds then shillings per centuen stock or India Three pone vien
18, or bare
be so, the
h the con
o be made, 'essed with egislature. aw Society . the Lori ind
sugges. ited. It is 5 of 1875.
the said notice of all such India Four pounds per centum stock and likely to be temporary, and therefore the appointment was equivalent to be India Four pounds per centum stock certificates as shall on the 1st June a discharge of the plaintiff by the company. It was unnecessary to decide 1887 be standing to his account on behalf of the Supreme Court of whether the liquidation had a similar effect or not. Lopes, L.J., conJudicature (excepting so much thereof as he may by any order made in curred. --Counsel, Kemp, Q.C., and McClymont; Murphy, Q.O., and J. G. the Supreme Court or in Lunacy be directed to except) and do cause
Witt. Solicitors, J. 0. Jacobs ; Saunders, Hawksford, Bennet, & Co. such assent to be delivered at the office of the Chief Accountant at the Bank of England on the said 1st June 1887.
THE QUEEN ». LORD PENZANCE-C. A. No. 1, 28th April. And I do further order that when such conversion shall have been PROHIBITION-ECCLESIASTICAL Court – JUDGMENT WRITTEN OUTSIDE THE effected the Paymaster General do place to the credit of the several PROVINCE IN WHICH THE OFFENCE WAS COMMITTED CHURCH DISCIPLINE accounts on which such India Four pounds per centum stock or stock ACT (3 & 4 Vict. c. 86). certificates shall be standing in his books corresponding amounts of A suit was instituted under the Church Discipline Act against the Rev. India Three pounds ten shillings per centum stock or stock certificates James Bell Cox, incumbent of St. Margaret's, Toxteth-park, Liverpool, and do write off such India Four pounds per centum stock or stock in the Chancery Court of York, for alleged illegal practices of ritual. Mr. certificates from the same accounts.
Bell Cox did not appear, and a monition to refrain from such practices And I do further order that after the 1st June 1887 the Paymaster having been issued and disobeyed, application was made for his suspension. General do as far as may be practicable give effect to all directions con
Affidavits were filed in support of the application and were sent by the tained in any order fiat report or certificate made in any division of the surrogate to Lord Penzance, the judge of the court, who was in London. Supreme Court of Judicature or in Lunacy and to all powers of attorney he sent down to York with directions to the surrogate that it should be
His lordship read the affidavits and wrote a judgment in London, which and other instruments which shall be in force on that day and shall delivered if Mr. Bell Cox did not appear, but that if he appeared the refer to any India Four pounds per centum stock or stock certificates court should be adjourned for the attendance of Lord Penzance himself. converted in pursuance of this Order as if they referred to India Three Mr. Bell Cox did not appear, and the surrogate delivered the judgment; pounds ten shillings per centum stock or India Three pounds ten which directed a suspension of the defendant for six months. Mr. Bell shillings per centum stock certificates.
Cox having disregarded this order, application was made for a significavit, And I do further order that the Paymaster General do hold the sum which was issued by the judge in the same manner, Mr. Bell Cox not of Twelve shillings and sixpence per centum part of the said sum of appearing. Mr. Bell Cox then moved in the Queen's Bench Division for One pound twelve shillings and sixpence per centum and pay and apply a prohibition on the ground that Lord Penzance could not do any judicial the same quarterly from time to time in like manner as the same would act outside the province in which the offence was committed, and that have been applicable if it had not been received in advance.
since the proceedings would terminate in imprisonment of the defendant HALSBURY, C.
it was contrary to natural justice to allow judgment to be pronounced by We concur in this Order,
the surrogate, wbo had no power to hear the defendant, but could only HERBERT EUSTACE MAXWELL.
adjourn the case, if he appeared, for the attendance of the judge. The
Divisional Court (Mathew, Cave, and A. L. Smith, JJ.) refused the proSIDNEY HERBERT.
hibition, and their decision was upheld by this Court (Lord ESHER, M.R.; N.B.-Having regard to the above Order suitors are informed that Fry, and Lopes, L.JJ.)., any order excepting amounts of India Four pounds per centum stock Lord ESHER, M.R., said that there were three grounds or which a proor certificates from the conversion above directed should be left at the hibition would issue-namely, where a court acted without jurisdiction, Pay Office not later than Friday the 27th May 1887.
or in excess of its jurisdiction, or where its action was contrary W. HENRY WHITE, Assistant Paymaster General.
to natural justice and violated the general principles of the law of the land. Mere irregularity of procedure was not a ground for a prohibition. In this case whatever judgments had been pronounced had been pronounced in the province of York, although they had been written outside the province. No judicial act, therefore, had taken place
outside the province. It was clear that Mr. Bell Cox did not intend to ap: CASES OF THE WEEK.
pear, but if he had appeared the court would have been adjourned and REID v. THE EXPLOSIVES CO. (LIM.)–C. A. No. 1, 3rd May.
opportunity would have been given him of being heard. It could not be Wrongful Dismissal— APPOINTMENT OF Receiver of COMPANY OPERATING prohibition. - Counsel, Arthur Charles, Q.c., Sir Waller Phillimore, and
said, therefore, that any injustice was being done which would call for a AS DISCHARGE OF SERVANTS.
Beaufort ; Sir Edward Clarke, S.G., and Danckwerts; Jeune and R. Saunders.
C. A. No. 1, 30th April.
PRACTICE-REFERENCE FOR INQUIRY AND REPORT-POWER OF REFEREE 10 on May 28, 1885, the company passed a resolution for its voluntary
HEAR WITNESSES-JUDICATURE Act, 1873 (36 & 37 Vict. c. 66), s. 56. liquidation, and Thorn and a man named Nutt were appointed liquidators. This was an action by the executors of the late Lord Wenlock to recove On December 16, 1885, Thcrn's accounts as receiver were passed, and he £173,000, advanced by Lord Wenlock to the defendant company, an Was discharged from his receivership. The plaintiff, who was aware of secured on mortgage. Huddleston, B., gave judgment for the full amoun the circumstances of the company, continued his employment, receiving a claimed. The Court of Appeal, on the 9th of May, 1883, held that the salary
, of $50 a month till January 15, 1885, when he was dismissed by defendants had only borrowing powers to the extent of £25,000, and gave the liquidators. He then brought an action against the company for judgment for the plaintiffs for this sum with interest, and also for so Wrongful dismissal, claiming £300 damages as being six months salary much of the
sums advanced as was employed in the payment of any debts due to him under the agreement of January 28. The action was tried or liabilities of the defendant company properly payable by them, with before Manisty, J., and a special jury. The jury found that the plaintiff interest thereon,
and the court referred it to a special
referee to inquire as Ons gave judgment for the defendants on the grounds that the appointment referee having heard counsel and witnesses, and having made his report, of the receiver had the effect of a notice discharging the company's the plaintiffs now moved the Court of Appeal to have the report varied in servants, and that the resolution for voluntary liquidation had a similar certain particulars, when the defendants took the preliminary objection effect.
Per Court (Lord Esher, M.R., Fry and Lores, L JJ.) dismissed the and that the findings of the referee under that section were equivalent to appeal. Lord Eszer, M.R., said that it was clear that if there had been the verdict of a jury, and the motion ought to be made in the Divisional only one mortgage on this business the mortgagee could enter for a breach Court. It was contended in support of this objection that a referee had much cases was to avoid the inconvenience of entries by a large number of as the referee
here had, from the necessity of the case, examined witmortgagees . The appointment had therefore the same effect as an entry wesses
, the reference
must have been intended to be under section 57. the company. No doubt, therefore, the plaintif had a right of action for only difference between a reference under section 56 and a reference under Thain tained unless he had sustained some damage arhe utmost damage so that the
court might adopt the report, or reject it simply on the ground in the could claim would be for the loss of his one months salary. But that it disagreed with it, whereas in the second case the referee's findings recereis not indeed on the same agreement, but at the rangementary, for only be set aside on the ground upon which the verdict of a juey could be notre atean six months. He had therefore sue tained no damage, and yould set aside. Under section 56 the reference was for inquiry
and report." ligpidation did not arise. Font.J.Mendelse tinere he taidlem
effenting the signified a' judicialt iniquity with witnesses sime word " inquiry' wes oppointment
of such a receiver was necessarily equivalent tota dismissal used because, in the result, it was not to have the same effect as a trial" en el intemporary. It was, however, beat here ceimershere was slikelking but being the thing witerence between the two sections, it being the id variable meresy stances of each case, and whether the receipership was niet to be forced that the matter had always been detit bon win on the footing of that the time the receiver was appointed toleindicate that this is postes et bonne ant per a celeron la deferent can hears cou heden buitnesses.
After such a consensus of action, the section could not be construed consideration, was binding as between the surrenderor and the surren-
Re HARWOOD-C. A. No. 2, 2nd May.
practice LUNATIO—SALE OF MORTGAGED PROPERTY-EXERCISE OF Power op SALB
BY COMMITTEE-CONVEYANCE TO PURCHASER-LUNACY REGULATION Act, was the other way, as it gave a beneficial operation to section 56. LOPES, L.J., said that though the form in the appendix of a reference under sec
1853 (16 & 17 Vict. c. 70) ss. 116, 136. tion 56 contained no provision for the examination of witnesses, whereas The question in this case was whether the Court in Lunacy had juristhe form under section 57 did, yet the forms were no part of the Act. He diction to authorize a sale of real estate of which a lunatic was mortgagee, agreed with Lord Esher, M.R., that under the word "inquiry," in section and, at the same time, authorize the committee, in exercise of an 56, the referee had power to examine witnesses. That had been the in. ordinary power of sale contained in the mortgage, to convey the estate, variable practice, and the narrower construction of the section would when sold, to the purchaser. The practice in such cases has been, after a deprive it of its beneficial operation.—Counsel, Rigby, Q.O., and R. O. B. purchaser has been found, to vest the estate in him by means of a vesting Lane; Sir H. Davey, Q.O., and 4. R. Kirby. SOLICITORS, Emmet, Son, $ order under the Trustee Acte. It was argued in the present case that the Stubbs ; Ashurst, Morris, Crisp, $ Co.
court had jurisdiction to authorize the committee to convey to a
purchaser, either under section 136 or under section 116 of the Lunacy HALL v. BROMLEY-C. A. No. 2, 29th April.
Regulation Act, 1853. Section 136 provides that “when a power is vested COPYHOLDS—ADMISSION-FINES.
in a lunatic for his own benefit, and such power is in the nature of a
beneficial interest in the lunatic, and it appears to the Lord Chancellor to This was an appeal from a decision of Kekewich, J., the question being be for the lunatic's benefit, and also to be expedient that the power what ines were payable on an admission to copyholds. The plaintiffs, as should be exercised, the committee of the estate may, in the name and on lords of the manor, claimed two fines in addition to the fine admitted by behalf of the lunatic, under an order of the Lord Chancellor, made upon the the defendants to be payable by them on their admission. Mary application of the committee, exercise the power in such manner as Hammond, widow, was at the time of her death in 1847 tenant of the the order shall direct." And by section 116'" where it appears to the copyholds. By her will she appointed trustees, with a power of sale of the Lord Chancellor to be just and reasonable, or for the lunatic's benefit, copyholds, but gave them no estate. Edward Hammond, her customary he may order that any estate or interest of the lunatic in land” be sold for heir, was admitted tenant at her death. The trustees sold the copyholds the purpose of raising money to be applied for certain specified purto Anna Hammond. Before any conveyance of the property was executed poses. she married James Dench, & settlement, dated July 10, 1848, being The Court (Cotton and LINDLEY, L.JJ.) held that section 136 did not executed on the marriage. On December 21, 1849, the trustees of Mary apply. A power of sale in a mortgage, which was only an equitable power Hammond's
will conveyed the pruperty to the trustees of Mrs. Dench's to bar the mortgagor's equity of redemption in the mortgaged property, settlement, Edward Hammond entering into a covenant to surrender the was not a power within the meaning of the section. It was more doubtproperty to the use of the settlement, and, on December 22, 1849, Edward ful whether section 116 applied, but it would be dangerous to introHammond surrendered to such uses as the trustees of 'the
settlement duce a new practice. The court accordingly
only authorized a sale of the should appoint, and, in default of appointment, to certain specified uses. mortgaged property, without empowering the committee to convey to This surrender was presented on May 27, 1850. On March 18, 1853 (at the purchaser.-COUNSEL, H. M. Humphrey. SOLICITORS, Torr ģ Co. which time, James Dench having died without issue, Anna Dench had under the provisions of her settlement become absolutely entitled to the property), a deed was executed by which, after an erroneous recital that no
Re MUFFETT, JONES v. MASON-C. A. No. 2, 4th May. surrender had been made in pursuance of Edward Hammond's covenant,
Will-CONSTRUCTION-LEGACY TO TRUSTEES" FOR THEIR SERVICES.” the trustees of the settlement purported to grant, bargain, and sell the This was an appeal from a decision of Chitty, J., the question being copyholds to Anna Dench absolutely in fee simple. Anna Dench after whether the trustees of a testator's will were, under the circumstances, wards married one Gilbert, and a settlement was then executed by which entitled to legacies which he had bequeathed to them. He
bequeathed: ber interest in the copyholds was vested in trustees. She died in March, 1856, and in March, 1884, Edward Hammond (who during all this time services and collecting of rents, &c., $25." The testator had a number
-“ To my two trustees, J. and s., per annum of (sic) each for their was the tenant on the rolls of the manor) died, his executors being the of houses, many of which were let
to 'weekly tenants. The annual income defendants Bromley
and John Edward Hammond. The trustees of the arising from the houses amounted to between £1,700 and £1,800. The Gilbert settlement sold
the property, and the question arose who were the trustees did not collect the rents themselves, but employed a collector at proper persons to be admitted as tenants in order to make a title to the commission of 5 per cent., or about £90 per annum.
This was an action purchaser. Bacon, V.O., on a summons under the Vendor and Purchaser to administer the
testator's estate, and the Chief Clerk, by his certificate, Act, decided that 'the
trustees the commission paid to the collector, but disallowed were the proper persons to be admitted. They were admitted tenants on to each of them the legacy of £25. Chitty, J., affirmed the decisicn, on May 13, 1885, and the question was then raised what fines were payable the ground that, as the trustees had not performed the service for which to the lords of the manor on the admittance. Besides the fine on the the legacy was given to them, they ought not to have it. admission of the defendants, the lords claimed two other fines--viz., a fine in respect of the legal estate which, as they contended, became the decision. Corrox, L.J., said that the trustees might have elected
The Court of APPEAL (COTTON, Lindley, and Bowen, L.Js.) affirmed trustees in 1853 ; and a fine in respect of the legal estate which, they employ
a collector at a salary. But, in his lordship's opinion, the testator alleged, vested in Edward Hammond as customary heir of Anna Dench, intended to give the £25 to the trustees to cover the expenses of collecting he being her brother. Kekewich, J., held that only one fine was payable the rents and the other services which they would have to perform as
THE COURT OF APPBAL (COTTON, L.J., Sir J. Hannen, and LINDLEY, L.J.) trustees.
trastees had asked the court to apportion the £25, and to COTTON, L.J., said that the purchaser had not these sums of £25 would be the only seductions from the income of the good equitable title to the property. He must see that all persons entitled to them a part of it in respect of their services other than the college to an equitable interest in the property concurred in or authorized the tion of the rents.
If the sum paid to the collector had been less than the only concerned with the legal kenant on the rulfido do the reside was very which the testator thought reasonable for expenses had been already
. clear. Edward Hammond was duly admitted as heir of Mary Hammond, exhausted. The point was in no way covered
by authority. Wilkinson and and till his death he remained on the rolls. Those who had the right to insist on the surrender of 1849 did not do so, and, even if the deed of been cited, were entirely different from the present case.
Wilkinson (2 Sim. & St. 237), and Baker v. Martin (8 Sim. 25), which had could have enforced admission. But in such an appointment. Instead of referring to the surrender by Son ; 4. P. Jackson ; Warren, Gardreer, gMurton.
truth that deed was not Romer, Q.C., and 3. X. Puget; Giallard. Solicitors, &. 3. Vanderpump Edward Hammond, as it would have done if it had been an appointment in furtherance of the object of that surrender, the deed contained
WARD v. DUDLEY-Chitty, J., 27th April. Edward Hammond remained on the
rolls as heredero
had beenchmade, FixTURES–Mixing Plast-Blast Furnaces—MINING RAILWAY SEADE when she dealt with her equitable interest, he remained on the rolls as trustee, and he was still there as trustee for the persons who directed a
MENT_Tenant For Life with POWER OF WORKING Mines—TRADE
FIXTURES_VALUATION OF FIXTURES. sale. No doubt, a covenant to surrender, entered into for valuable
In this case a receivership motion was made for the purpose of obtaining