Page images

The Solicitors' Journal.

LONDON, JUNE 17, 1882.


The Tribunal appointed by the Solicitors' Remuneration Act held a meeting on the 13th of May, and another meeting is appointed for Saturday, the 17th inst., but no scale of remuneration has yet been settled.

Vice-chancellor Hall continues to gain strength, but we regret to learn that the improvement in his condition as regards power of speech and movement is not as yet very substantial.

"we Are Glad to hear that the festival of the Solicitors' Benevolent Association on Wednesday was the most successful which has yet been held, the proceeds in life and annual subscriptions and general donations amounting to no less than £936 8s.

Mr. Justice North has, at the request of the Lord Chancellor, undertaken the business of Mr. Justice Kay, while the latter learned judge is occupied in hearing the causes and matters transferred to him from Vice-Chancellor Hall by the order which we printed last week.

The Statement furnished to us of the recent observations of Mr. Justice Chitty on the privilege of Queen's Counsel on motion days, was not quite accurate. The rule as stated by his lordship was, "That any member of the inner bar coming in after his turn, but before the motions had left the inner bar, was entitled, notwithstanding, to move." This rule was laid down by the learned judge after consultation with the Master of the Rolls.

There Can Be No Doubt that the Council of the Incorporated Law Society acted wisely in submitting to the members the question whether the decision of the Court of Appeal in the actions against the two firms of law stationers should be carried to the House of Lords; and we think that the result arrived at by the meeting will be generally approved. Whether the decision was or was not satisfactory, it related to a matter of so much importance to the profession that it is desirable to have the law on the subject laid down by the highest tribunal. When that has been done, the time will come for considering what legislative or other provisions may be necessary for meeting the convenience of country solicitors, and protecting the profession from the inroads of unqualified practitioners. No one who reads the statements made at the meeting can doubt that the law stationers are rapidly widening the sphere of their operations and trenching largely on the functions of solicitors. Their intervention may be convenient and inexpensive to some practitioners, but the fact must not be lost sight of that it is not a long step from the employment of unqualified persons by solicitors to transact certain kinds of legal business to their employment in similar matters by clients.

Society, and amended after the meeting with the Associated Provincial Law Societies, was before the tribunal in January last, but the draft order to be framed by the tribunal and submitted to the Council of the Incorporated Law Society has not yet been settled. On a matter of so much importance, no one would grudge a reasonable time for careful consideration, but nearly five months seems somewhat excessive. Having regard to the rumours which have been current as to the difficulty standing in the way of a settlement, we have hitherto refrained from commenting on the matter. We venture to think, however, that the time has now come for urging the necessity for some conclusion being arrived at. Practitioners are in this very unfair position, that while they are paid on the old system they are expected to prepare their documents on the new system. It is very much to be hoped that something definite will result from the deliberation of the tribunal at its forthcoming meeting.

Sir Hardinge Giffabd's Bill to amend the Judicature Acts appears to have been praotically rejected on Monday, a motion by Mr. Pugh to leave out the words " or rule of court " being carried by a small majority. The Bill provides that "no Order in Council or rule of court required by the Supreme Court of Judicature Acts, 1873 and 1875, to be laid before each House of Parliament shall come into operation until the expiration of forty days next after it has been so laid before each House of Parliament." As no Order in Council is necessary to enable the Committee of Judges to make rules of court under the power in section 17 of the Appellate Jurisdiction Act, the effect of the alteration is to leave matters in this respect exactly as they are now. We confess we are at a loss to understand the objection to Sir H. Giffabd's proposal. The notion of the Attorney-General, that " the attempt to pass the clause was offering an insult to the judges," was sufficiently refuted by Sir H. Giffabd's statement that he had reason to believe that a majority of the judges were in favour of the Bill as it stood. It is, indeed, difficult to see how the Judges could reasonably object to the proposal that rules of court, instead of coming into operation at once, should be laid upon the table of the House for forty days before coming into operation. It is quite certain that Parliament would not interfere with rules of merely professional interest or relating to technical matters of pleading, and it is surely right that it should have an opportunity of vetoing proposed changes of general importance which may be devised by " any three" out of the committee of seven judges.

The Correspondence we print this week on the subject of the delay in the promulgation of the scale for conveyancing remuneration represents only a tithe of the private communications which have reached us on the subject during the last few weeks. The draft order prepared by the Council of the Incorporated Law

It Is A Satisfaction to pass from the incautious letter of the Home Secretary, and the indistinct and vacillating utterances of the Lord Chief Justice, to the firm legal ground afforded us by the decision of Field and Cave, JJ., in the case of Beatty v. Oillbanks. Stated shortly, the case was this :—The members of a religious body, called the Salvation Army, proposed to march, according to their custom, through the streets of Weston-superMare, for a purpose and in a manner which were lawful, unless what was otherwise lawful was rendered not so by the unlawful purpose of another body, called the Skeleton Army, to make it the occasion of obstructing, insulting, assaulting, aud raising a riot against them. The Salvation Army, notwithstanding they were aware of the lawless designs of their opponents, proceeded peaceably to execute their purpose, relying on the protection of the law and its officers. Thereupon the magistrates, instead of binding over the members of the Skeleton Army to keep the peace, put the legal fetter on the wrists of the Salvation Army. But, as Cave, J., pertinently observed, the law in this country has not yet gone the length of forbidding a shopman to exhibit in his windows rich wares, which may prove too strong for the self-restraint of a burglar. The business of the law and its officers is to protect peaceable citizens against violence in the exercise of their legal rights; not to interpose its authority in favour of the law breakers, and to buy off their lawless violence by accomplishing their unlawful object for them. This sound decision will, it may be hoped, prove useful in restoring the authority of the law, and bracing up the nerves of magistrates, both paid and unpaid; who throughout this business have, for the most part, cut a very sorry figure. To do an act in itself lawful, merely for the purpose of provoking another to commit a breach of peace, perhaps under some circumstances may be unlawful. But magistrates will no doubt for the future accept it as law, that, to make an act unlawful, it is not enough to show that the act, lawful in itself, is likely to provoke a lawless one, nor even to show that the doer of the lawful act knows that such will be the consequence.

The Aemy (annual) Act, 1882 (45 Vict. c. 7), one of the nine statutes which Parliament has succeeded in passing this session, contains two very remarkable sections. The 4th section, after reciting that "the*misprints hereinafter mentioned occur in the Army Act, 1881, and it is expedient to amend the same," sets out no less than six cases in which certain words are to be " substituted" for certain other words occurring in different sections of that Act. The propriety of the amendments may be indisputable, but it is difficult to see how the word "misprint" can have come to be used. For instance, sub-section 2 of the 4th section enacts that " in section eighty-seven of the Army Act, 1881, the words 'a proclamation in pursuance of the enactments relating to the calling out of the reserve on permanent service' shall be substituted for ' a proclamation in pursuance of this Act' in the first sub-section." This amendment was surely suggested by an afterthought, and the words originally printed could not have been been "misprinted" in the ordinary sense of the term. Misprints, in the proper sense of the term, arc of course unavoidable, the two most salient instances of late years being perhaps the printing of "that" for "this" in section 11 of the Burial Act, 1880, which was solemnly corrected by the Burial and Registration Acts (Doubts Removal) Act, 1881, and the omission of "same" after "the" in section 36, sub-section 4, of the Taxes Management Act, 1880—an omission which, though it makes the section "insensible," is still uncorrected by Parliament. It is provided also by the 6th section of the Army Act that "in all copies of the Army Act, 1881, which may be printed after the commencement of this Act, the words by this Act directed to be substituted for other words shall be printed therein in lieu of the latter words, and the words directed by this Act to be added shall be added thereto." This is quite a novel enactment, and might cause some confusion in the case of the two rival copies of the Act of 1881 being used on the same occasion. To make the enactment of real use, all the old copies should be "called in" like old threepenny pieces when new ones are issued. Even in such a case, however, no legal presumption would arise that the Queen's Printer's copy was the correct one. In the case of a local Act, no doubt, a Queen's Printer's copy is evidence of the contents of an Act of Parliament, by 8 & 9 Vict, c. 113, s. 3. But in the case of a public Act, the only mode of authenticating the contents is a reference to the Parliament Roll (see Reg. v. llasiingfield Overseers, L. R. 9 Q. B. 209), in which, however, clerical errors must occasionally occur (see Lyde v. Barnard, 1 M. & W. 115).

A Case before the Court of Appeal last week again raised the question, which has been a good deal discussed of late, as to the right to object to criminating questions. Before the decision of the court in In re Reynolds (30 W. R. Col), there was some conflict of authority upon the question whether an objection to questions on the ground of their criminating tendency may be taken by the witness himself, or whether he can claim the privilege of silence only by permission of the court. In Reg. v. Garbitt (1 Den. 23G) it was held that the opinion of the court as to whether the answer might tend to criminate the witness was the test upon which the privilege depended, and this view was token in Odorn v. London Dock Company (3 W. R. 238, 10 Ex. 6D8)

by Parke, B., who expressed his disapprobation of the decision of Jervis, C J., and Maule, J., in Fisher v. Ronalds (12 C. B. 762), to the effect that the witness may exercise his own discretion, and may decide for himself whether the question will or will not criminate him. In Reg. v. Boyes (9 W. R. 690, 1 B. & S. 311), the Court of Queen's Bench held that the privilege can only be allowed where the court is satisfied that a compulsory answer will occasion any real danger to the witness, although Cockburn, C. J., pointed out that, if there is any indication of such danger, great latitude should be given to the witness in indicating the effect of the question. This decision was approved and followed by the Court of Appeal in In re Reynolds. It may be questioned whether it would be not in accordance with convenience and common sense to abolish the privilege in question, while protecting a witness against any criminal proceedings as the result of his disclosures. Both these objects have been attained by the Indian Legislature, for section 132 of the Indian Evidence Act provides that " a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend, directly or indirectly, to criminate, such witness, . . . provided that no such answer which a witness shall be compelled to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer."

The Steps in the curious case of Smitherman x. Souih-Eastern Railway Company, which has been the subject of such protracted litigation, and came before the Court of Appeal on Thursday last, appear to be as follows. The plaintiff was the widow of a man who, in attempting to cross the line at a station of the defendants', had been killed by an engine which he mistook for the train for which he had taken his ticket. A bell had rung for the train, but the deceased had been warned by a porter just as he was about to jump off the platform. The first trial was before Baggallay, L.J., and a verdict was found for the plaintiff. This verdict a divisional court (pollock and Huddleston, BB.) set aside as against evidence. The Court of Appeal (cockbubx, C.J., and Cotton and THESic.Eit, L.JJ.) reversed this decision. The House of Lords (Lord Sllborne, C., and Lords Penzance and Blackburn) reversed the decision of the Court of Appeal, and granted a new trial, on the ground that the question of contributory negligence on the part of the deceased had not been sufficiently put to the jury. On the second trial the jury found a verdict for the plaintiff, but added that they thought both parties to have been greatly in fault. Pollock, B., construed this as a finding for the plaintiff, and entered judgment accordingly. A divisional court (mathew and Cave, JJ.) refused a rule for a new trial. The Court of Appeal (brett and Cotton. L.JJ.) confirmed this ruling, but granted a rule to show cause why judgment for the defendants should not be entered on the findings of the jury under ord. 40, r. 4. The Court of Appeal (coleridge, C.J., and Bbett and Cotton, L.JJ.) have now pronounced for the plaintiff, being of opinion that the^expression of the jury that both parties were greatly to blame might be disregarded as a comment, and was not to be imported into the finding. With this judgment it is, we think, impossible to disagree, although it is not improbable that the House of Lords may again be asked to express an opinion on the case.

A collection of tho official publications of the Court of Appeal, Chancery Division, Queen's l!anch Division, and the Frobate, Divorce, and Admiralty Division, for Trinity Sittings, has b ca issued by Mr. Scott, of No. I, Warwickcourt, Uolborn, containing the complete sittings papers and cause lists of all these courts, with the Order ol Court relating to Vice-Cbanoellor Hall's business, and constituting a convenient sized work for reference in office or chambers.

On the 9th inst, in tho Queen's flench Division of the Irish Hish Court of J ustice, addresses were presented from the Bar of Ireland and the Council of the Incorporated Society of tho Attorneys and Solicitors of Ireland to Mr. Justice Fitzgerald on the occasion of bis retirement from the Queen'iBeocb, bo having been promoted to be Lord Justice of Anpeal in Ordinary in England, with a life peerage as Lord Kitzierald. Tho Lord Chief Justice, in tlm name of the bench, paid a high tributo of admiration to Mr. Justice Fitzgerald.


To the practitioner in bankruptcy there is probably no question
which has created greater difficulty and uncertainty than that of
the discharge of a debtor under resolutions for liquidation by
arrangement of his affairs. A consideration of the sections and
rules relating to the subject, and of some of the decisions which
have been pronounced thereon, may be of interest and assistance
to our readers.

One of the great principles upon ivhich the Bankruptcy Act of 1869 proceeded was that no bankrupt should obtain a discharge unless his estate paid 10s. in the pound to the creditors, or the creditors passed a special resolution agreeing thereto. This provision, with regard to bankruptcy proper, is contained in section 48 of the Act, whilst section 54 defines the status of an undischarged bankrupt to the effect that no debt proveable under the bankruptcy shall be enforced against the property of the bankrupt until three years from the close of his bankruptcy, and if in the meantime he make up the dividend to his creditors to 10s. in the pound, he shall be entitled to a discharge "in the same manner as if a dividend of 10s. in the pound had originally been paid out of his property," but if otherwise, then, on the expiration of the three years, the balance of the debts owing may be enforced in manner therein provided. The question has often been asked, Do either of theso sections apply to liquidation? Section 125, subsection 7, provides that, with the modification thereinafter mentioned, all the provisions of the Act shall, so far as the same are applicable, apply to the case of a liquidation by arrangement, in the same manner as if the word "bankrupt" included a debtor whose affairs are under liquidation, and the word "bankruptcy" included liquidation by arrangement. The modification referred to is contained in sub-section 9 of the same section, which provides that the provisions of that Act with respect to the close of bankruptcy, discharge of a bankrupt, the release of the trustee, and the audit of accounts by the comptroller shall not apply in the case of a debtor whose affairs are under liquidation by arrangement; but the close of the liquidation may be fixed, and the discharge of the debtor and the release of the trustee may be granted by a special resolution of the creditors in general meeting, and the accounts may be audited, in pursuance of such resolution, at such time and in such manner and upon such terms and conditions as the creditors think fit. The rule in liquidation which regulates the discharge of a debtor is rule 302, which provides that "where liquidation by arrangement, and not in bankruptcy, has been resolved on, the creditors may, at the same meeting at which such resolution is passed, resolve whether the debtor's discharge shall be granted, either forthwith or at a date to be specified in the resolution, or subject to any and what conditions. In default of any resolution being then come to as to the debtor's discharge, a general meeting shall be summoned for the purpose of considering the grant thereof, either when the trustee shall see fit, or when the committee of inspection (if any), or when the debtor, with the concurrence of one-fourth in value of his creditors, who have proved, shall require the trustee to summon the same." It is clear, therefore, that section 48 does not in any way apply to liquidation; but is it equally clear that section 54 is also excluded from such application? We confess to having had, for some time, very considerable doubt upon this point; but, in the absence of any direct authority upon the point, we have formed the opinion that it is. The obvious reference to section 48 in the words of section 54 above quoted convince us that this is the proper construction to place upon the section, and although the protection of the property of a bankrupt for three years after the close of the bankruptcy might not, if it stood alone, come within any of the exceptions contained in sub-section 9 of section 125, the subsequent provisions as to discharge in case the dividend be made up to 10s. in the pound, would, we think, have to be construed in conjunction therewith, and so bring the whole provisions of that section within the exceptions mentioned.

But, if the conclusion which we have arrived at be correct, what is the status of an undischarged liquidating debtor after the close of the liquidation? Until the close of the liquidation any

property which might be acquired by or devolve upon him would, of course, pass to the trustee by virtue of section 15, sub-section 3, of the Act; but, upon the close taking place, that provision would cease, and the debtor would then be entitled to retain any such future-acquired property. But would the creditors have any rights against such property for payment of the unpaid balances of their debts? Rule 289 provides that "every creditor in respect of a proveable debt shall, in the event of a liquidation by arrangement being resolved upon, be absolutely restrained from commencing, or continuing, or enforcing any proceedings whatsoever against the debtor or his property . . . unless the court shall be of opinion that such creditor's rights have been prejudicially affected by the resolution, and that the estate would yield a larger dividend if administered in bankruptcy." It would appear, therefore, that, notwithstanding a liquidating debtor does not receive a discharge, he, on the close of his liquidation, practically becomes discharged by reason of that rule, for such must be the effect of the creditors being absolutely restrained from taking or continuing any proceedings against their debtor or his property. If we are right in this proposition it may relieve the minds of some debtors whose creditors have capriciously refused to grant them their discharge. If, however, we are wrong in our conclusion, and it should be held that rule 289 only applies during the continuance of the liquidation, then, indeed, the position of an undischarged debtor is truly deplorable, for he will have been divested of all his property, to be distributed amongst his creditors, and still be liable to them for the unpaid balances of * their debts.

But, even if the proposition which we have advanced be correct, there is a wide difference between the position of a debtor who has regularly obtained his discharge and one who has not, but whose liquidation has been closed; for a discharged debtor can and must plead his discharge in an action by any of his creditors: Heather v. Webb (25 W. R. 253, L. R. 2 C. P. D. 1); Mmsliev. Corrie (27 W. R. 279, L. R. 4 Q. B. 295); Wadsworth v. Pickles, (28 W. R. 628); Ex parte Hemming, Be Chatterton (28 W. R. 218, L. R. 13 Ch. D. 163). But an undischarged debtor has no defence which he can plead. In Ex parte Hemming the application was to restrain a creditor, who alleged that his debt had been incurred by fraud, from proceeding with an action against the debtor after the latter had obtained his discharge, but before the close of the liquidation, and the Court of Appeal declined to do so, assuming, for the purposes of the decision, that the debt had been incurred by fraud, but leaving the question whether it had or had not been so incurred—and, consequently, whether the discharge was an answer or not—to be disposed of in the action. But suppose the position of the matter to have been that the liquidation had been closed, but the debtor had not obtained his discharge when the creditor commenced his action against him. In that case the debtor would have no defence to such an action, whether the debt was incurred by fraud or not, so that his only remedy would be to apply under rule 289 to restrain the creditor from proceeding with his action. Would the court in that case try the question of fraud in an application to restrain? If our proposition be correct, we conceive that the court would have no alternative but to do so in order to give effect to rule 289; for if the debt were not incurred by fraud, the action should not be allowed to proceed, and if it were incurred by fraud, of course the creditor should not be placed in a worse position by his debtor not having obtained a discharge than if he had obtained one. If the court, under the rule, simply restrained all creditors from proceeding, a debtor who had contracted debts by fraud or breach of trust, and who did not obtain his discharge, would, after the close of his liquidation, absolutely be better off than if he had obtained it. This would be an anomaly which, we think, the court would never allow, so that it would be necessary for the court to try the question of fraud in order to determine whether the creditor should be restrained or not.

But if the close of a liquidation has the effect which we have argued of practically discharging a debtor, the creditors, by never closing the liquidation or giving the debtor his discharge (and there seems to be no provision to compel them to do so at any time), can for ever keep the future property of their debtor liable until they have been paid the full amount of their debts, with interest In bankruptcy a trustee is required, by section 47, after

he has realized the estate, to make a report to the court and apply for an order to close the bankruptcy, and the Comptroller in Bankruptcy, in the exercise of his office, sees that this is done in due course, so that a bankruptcy cannot be kept open for ever. In liquidation, however, a debtor appears to be entirely at the mercy of his creditors, and his position, where his creditors are hostile, may be very much worse than if his affairs had gone into bankruptcy. The effect of this was well demonstrated in the case of Ex parte Greener, Be Wainwight (30 W. R. 125). In that case the affairs of the debtor went into liquidation in 1877, and the trustee, with the approval of the court and on a resolution of the creditors, purchased the whole of the estate of the debtor for a sum sufficient to pay 5s. in the pound to the creditors and the costs, but no resolution for the close of the liquidation or discharge of the debtor was passed. The debtor, however, supposing the effect of the arrangement for the purchase of his estate by the trustee to be to free him from his liabilities, commenced a fresh business, and acquired therein stock-in-trade which the trustee in 1881 seized as property divisible amongst the creditors under the liquidation in 1877, and it was held that he was entitled to do so. The Master of the Rolls and Baggallay and Lush, L. JJ., in coming to this conclusion, expressed their regret at the extreme hardship of the case, but the law was too clear for them to be influenced by this consideration. If the case had been in bankruptcy, the trustee would have been compelled to have got the bankruptcy closed, in 'which case the debtor's future property would have been protected except as provided by the Act. The case was distinguished from that of Ex parte Tinker, Re France (22 W. R. 794, L. R. 9 Ch. 716), which was a case of a sale of the whole of the estate to the debtor himself, and it was there held that it would be a breach of faith to allow the creditors to take from the debtor the property which they had themselves sold to him, and that in effect such sale operated as a discharge to the debtor.

On the whole we consider the present law with regard to the position of a debtor in liquidation to be one of the most unsatisfactory provisions of the Act of 1869, and we shall on this account alone, if for no other reason, hail with pleasure an amendment of the law which will entirely abolish liquidation proceedings for the future, even though ordinary bankruptcy bo the only substitute therefor.


[To the Editor of the Solicitors' Journal.]

Sir,—The full effect of the decision of the Local Government Board, that the repairs of milestones and guide-posts are not part of those "repairs" contemplated by the statute, and consequently, if done at all, will be disallowed by the auditor, will not be apparent until winter time. When, however, a few persons have perished for want of guidance on a winter's night, the question, "Who is to blame t" will come forward. May I ask the favour of your printing the enclosed appeal from the county justices of Leicestershire, which was sent to the Local Government Board last year. It may possibly alter your view as to the law as it stands, and, if not, will certainly confirm your view of what it should be. W. Napibb Bbbvx, Clerk of the Peace.

Leicester, June 13.

[The following is the document referred to :—

To the Bight Honourable the President and the other Members of the Local Government Board:—

The justices of the peace of the county of Leioeeter, in quarter sessions assembled, make the following appeal:—

By the Highway Act, 1878 (section 10), power is given to county authorities to enforce performance of duty by defaulting highway authority, and, by the 13th section of the same Act, a contribution towards the expense of main roads is to be made from the county rate on a certificate of the county surveyor, or such other person or persons as the county authority may .appoint, that such main road has been maintained to his or their satis/action.

The justices submit to your Honourable Board that the effeot of this enactment is to place the ultimate responsibility of the due maintenance of highways and main roads on the county authority.

Tho justices of this county, in conference with the chairman and members of the Leicester Highway District, agreed upon certain regulations for the satisfactory maintenance of the main roads throughout the county, in the interest of the publio generally (as tbey snbmit to your

Honourable Board that they were fully justified in doing). And, inasmuch as, by the old turnpike law, milestones and direction postB were to be maintained in repair (with penalties in case of default), the justices in quarter sessions assembled, as before mentioned, made the following rule :—" Milestones, direction posts, and posts indicating the boundaries of highway areas, are to be provided, Icept in repair, painted periodically, and legibly lettered."

The importance of this regulation to the publio convenience is obvious; for now that turnpike gates are removed, and the traveller is thereby deprived of information which the toll-taker oould have afforded, it is more than ever important to the publio safety and convenience that milestones and direction posts should be kept in repair.

Mr. Chamberlin, the poor law auditor of the district, has, however, taken upon himself to say that the county authority has, in fact, no power to make this regulation; that the painting of milestones is no part of the repairs of a road, and has (as auditor) disallowed the sum incurred in a highway district for painting milestones.

And not only so, the same official has decided that the cost of removal of snow obstructing a road, cannot be charged under the head of repairs against the county.

The justices of the county of Leicester have never given Mr. Chamberlin any reason to believe that they would resist payment for removal of snow; on the contrary, they would have deemed the question too absurd for discussion ; but Mr. Chamberlin has, without any such expression of opinion, taken upon himself to inform the Leicester Highway District that he will refuse to sanction any claim against the county authority for the removal of snow from the main roads—iu other words, that the expense of making roads fit for the traffic of the publio is to be borne by parishes without any contribution from the county, or the work left undone altogether.

It is difficult to understand how Mr. Chamberlin could have arrived at the conclusion that the cost of removal of snow, which is obstructing and rotting a road, is not to be charged as repairs.

But it is not on the question whether milestones and direction posts are to be maintained, or snow removed, that the justices appeal to your Honourable Board; it is to ask whether it can be with your sanction that a poor law auditor thus takes upon himself to set aside that authority which, by statute, is confided to the county authority.

By the District Auditors Act, 1879, the Local Government Board may from time to time assign to district auditors their duties, and the county magistrates respectfully ask of your Honourable Board whether you have assigned to Mr. Chamberlin any duties under which he claims to exercise a control so vexatious aud prejudicial; or by what right it is that he, whose business would seem to be the simple audit of accounts, takes upon himself to set aside, by his own proper authority, the united action of the magistrates and highway boards of the county.

The county justices submit to your Honourable Board that this is a case for your interference on this their appeal, inasmuch as it may happen that in future, with the fear of such expenses being disallowed, highway districts may suffer milestones and direction posts to go into decay; and thus there will be no expenditure, the disallowance of which can be brought before your Honourable Board on appeal from the auditor's disallowance, and the public service may suffer from the action of au officer whose interpretation of a statute is entirely at variance with that put upon it by the county justices.

And the county j ustices assembled as aforesaid in quarter sessions submit this matter to your Honourable Board as one of urgent necessity, especially in prospeot of the coming winter, and pray your attention may be speedily called to this appeal, and your deoision communicated as soon as possible.

Signed, on behalf of the justices in quarter sessions assembled, November 19, 1881. Akchdalb K. Palheb, Chairman.]

[To the Editor of the Solicitors' Journal.]

Sir,—Do you know how this matter stands, and how and where the delay is in its not being settled P Meanwhile, here is nearly half the year gone, and we are working quite in the dark as to the proper costs to oharge in conveyancing matters. At this instant I have before me a draft conveyance sent me for perusal of less than five folios; what am I to charge—Is. 8d. (the third of 5s. for a skin of fifteen folios) for perusal, and Is. 8d. for a fair copy at 4d., together 3s. 4d., or what t

I hear that at the meeting of the Provincial Law Societies held last week, it was stated there was a " sorew loose " amongst the body who have the duty, under the Act, of forming the scale. I hope it is not Bo, or we shall have nothing done before the Long Vacation. Lex.

June 13.

[To the Editor of the Solicitors' Journal.] Sir,—Week after week I turn to the Solicitors' Joubnal, hoping to see that a General Order has been made under the Solicitors' Bemnneration Act of last session, and I look in vain; the delay in bringing ont the order appears to me to be most vexatious and unnecessary. Solicitors are expected to adopt the new system of conveyancing, and yet their charges are in the old style; this is not fair to the profession. Is the Incorporated Law Societyjpowerless to help us f

A Country Solicitor.


Composition Resolutions—RegistrationDebtor With No AssetsTrivial CompositionAbuse Of Procedure Op CourtBankruptcy Act, 1869, s. 126—Bankruptcy Rules, 1870, R. 295.—In a case of Ex parte Ball, before the Court of Appeal on the 8th inst., a question arose as to the registration of composition resolutions. A debtor had filed a liquidation petition, and by his statement of affairs, produced at the first meeting of his oreditors, it appeared that he had liabilities amounting to £1,293, and that he had no assets. Questions were put to him by some of the oreditors, and he admitted thathe was in the receipt of a salary of £5 per week. The oreditors by the proper statutory majority, resolved to accept a composition of sixpence in the pound, payable within a month after the registration of the resolutions, and to besecured to the satisfaction of the chairman of the meeting. The resolutions were confirmed at the second meeting and were registered. Some dissentient creditors applied to the court to rescind the registration, and their application was refused by Mr. Registrar Hazlitt, acting as Chief Judge. He thought that he was justified in so deciding by Ex parte Elworthy (23 W. R. 790, L. R. 20 Eq. 742), in whiofa, under a liquidation petition filed by a debtor, who stated that his debts amounted to £130, and that his assets were £7, the creditors present at the meetings unanimously resolved to aooept a composition of threepence in theponnd. No creditor opposed the registration, but the registrar of the county court refused to register the resolutions, oc the ground that there were no available assets for distribution among tbo oreditors, and the judge of the oounty court affirmed his deoision. Baoon, C.J., however, held (there still being no opposition) that, as all the requirements of the Act and the Rules had been complied with, the resolutions ought to be registered. In Ex parte Ball the Coort of Appeal (jessel, M.R., and Lindley and Bowen, L.JJ.) held that the registration ought to be rescinded. Jessel, M.R., described the proceedings as an abuse of the procedure of the court, aud Lindley, L. J., said that they were a scandal. And Jessel, M.R., expressed his approval of what was said by Baoon, O.J., in Ex parte Staff (23 W. R. 950, L. R. 20 Eq. 775). In that oase the statement of a liquidating debtor showed that his debts amounted to £640, and that his assets were only £32. The oreditors resolved on a liquidation by arrangement, and granted the debtor an immediate discharge. One creditor opposed the registration, and the registrar refused to register the resolutions, on the ground that there were praotioally no assets for distribution among the oreditors. Bacon, C.J., affirmed this decision. He said that nothing was better settled than that the Court of Bankruptcy wpuld not allow its procedure to be made use of for iniquitous or merely idle purposes. The machinery of the oourt ought not to be employed in a oase where £32 was all that the debtor had to hand over to his oreditors to satisfy debts amounting to £540. The petition was a mere abase of the procedure in bankruptcy. Jessel, M.R., said that these observations applied exaotly to Ex parte Ball,—Solicitors, Barnard $ Co.; S. Chapman.

Illegal ContractCause Of ActionAgreement By Way or GamIng Or WageringAgent Employed To Bet—8 & 9 Vict. C. 109, s. 18. —In a oase of Lynch v. Godwin, before the Conrt of Appeal on the 10th insl,, the question arose whether the employment of an agent to make a bet on a horse-race was illegal, so that the agent could not recover from the principal the amount of the bet which he had had to pay. The aetion was brought to recover the sum of £40 paid by the plaintiff for the defendant on a betting transaction. In 1878 the defendant instruoted the plaintiff to bet £40 upon a horse called Vril for the Ascot Stakes. The plaintiff made the bet with one Onley in the presence of the defendant. In the result the horse did not win the race, and the plaintiff paid Onley the £40. The defendant declined to repay the plaintiff the £40, and he raised the defence that the transaction was null and void under 8 & 9 "Vict. o. 109, s. 18, as being an agreement by way of gaming or wagering in respect of which no action could be brought or maintained. Lord Coleridge, C.J., before whom the action was tried without a jury, gave judgment for the plaintiff, holding that, although a bet or contract by way of wagering between principals was a null and void contract, the statute did not render void transactions arising out of the wager. The Court of Appeal (jessel, M.R., and Lindley and Bowen, L.JJ.) affirmed the decision. Jessel, M.R., said that the employment of an agent to bet was not in itself illegal, and a bet was void but not illegal. If you employed an agent to make a bet for you, you knew he must pay or be subject to very unpleasant consequences. If you did not withdraw your request it must continue, and if he bet at your request be paid at yonr request, and you were liable for the money so paid. The judgment was quito right. Lindley, L.J., said that a request to pay the bet, if lost, was implied in the request to bet. Bowen, L.J., oonourred. —Solicitors, E. W. Owlei; Evans, Manchester.

Bill Of SaleKeoistration—Statement Of Consideration"deFbazancb Or Condition "—Affidavit On Registration'Misdescription Of Grantor—Bills Of Sale Act, 1878, ss. 8, 10.—In a case of Ex parte Poppku-ell, before the Court of Appeal on the 8th inst., a question arose as to

the statement of the consideration for a bill of sale. There was also a question whether a parol agreement between the grantors and the grantee amounted to a " defeazance or condition" within the meaning of sub-section 3 of section 10 of the Bills of Sale Aot, 1878, so that it ought to have been registered with the bill of sale, and there was a third question whether the occupation of the grantors bad been untruly described in the affidavit made on the registration. The bill of sale was made by a father and a son in favour of a money-lender. The grantors were desoribed in the deed, and also in the affidavit filed on the registration, by their true address, and they were stated to be "both mantle manufacturers, carrying on business together" at the address already mentioned, under a specified firm. The deed contained a recital that the grantors had applied to the grantee for an advance of £242, which he had agreed to make upon their agreeing to pay the sum of £100 by way of interest and bonus, and upon having the repayment of the advance, and the payment of the bonus and interest, secured in manner thereinafter expressed. And the grantors, in consideration of the sum of £242, by the grantee paid to them at or before the execution of the deed, assigned absolutely to the grantee all the furniture, stock-in-trade, and other chattels belonging to them in the premises by the address of which they were described, subject to redemption on payment of £342 in certain specified instalments. The bill of sale was executed in November, 1880, and in August, 1881, the father filed a liquidation petition. The trustee in the liquidation sought to have the deed declared void against him on several grounds :— (1) That the consideration was not truly stated. The trustee alleged that when the deed was executed there was a parol agreement between the grantors and the grantee that it should not be registered, and that in consideration of this agreement the grantors agreed to pay the grantee a larger sum by way of bonus and interest than he wonld otherwise have charged for the advance. ThiB parol agreement, it was said, was part of the consideration for the bill of sale, and ought, therefore, to have been stated in it. (2) It was urged that, if the parol agreement was not part of the consideration for the deed, it was, within the meaning of sub-section 3 of section 10 of the Bills of Sale Act, 1878, a "defeazance or condition" not contained in the body of the bill of sale, and that it ought, therefore, to have been set forth in the copy filed on the registration as part thereof. It was contended that it was in effect, a "defeazance or condition," making the bill of sale void as against a trustee in bankruptcy or an exeoution creditor of the grantors. (3) It appeared that the father and the son had formerly carried on business in partnership together, but that at the date of the execution of the bill of sale the partnership had been dissolved, and the business was being carried on by the father alone, the son acting as his clerk or agent. The goods comprised in the deed were the property of the father alone. The Court of Appeal (jessel, M.R., and Lindley and Bowen, L.JJ.) overruled the objections, and held that the bill of sale was valid. Jessel, M.R., said that the Aot was, of oourse, intended to provide that reasonable information should be given to those who dealt with persons who bad given bills of sale, but it must not be made a mere trap for those who lent money on the security of bills of sale. It was the duty of the judge to construe the Act fairly, but, on the other hand, be must not adopt a literal construction where it would lead to a manifest absurdity. The agreement not to register the bill of sale was a collateral agreement. The consideration for the bill of sale was the £242 which the grantors got for giving it. The motive for paying the additional bonus was not part of the consideration for the deed. The agreement to pay it was a mere collateral agreement If it had been mentioned at all in the deed it must have been inserted as a covenant to pay the additional bonus, and it might as well be argued that every covenant in the deed was part of the consideration for it Was the parol agreement then *. "defeazance"? A defeazance was something which defeated a deed, and was contained in another document. If it was contained in the deed itself it was a condition. In the present oase the agreement was not contained in any other document; it was a mere parol agreement. A condition was something oontained in a deed which defeated or qualified an estate given by it. The agreement in the present case was not intended to defeat or qualify the estate as against the grantors. It was intended for the protection of the borrowers' credit, not for the protection of their creditors. It was an incident of the Act that it would, in certain events, defeat the bill of sale. It would have been entirely contrary to tbe intention of the parties to insert it in the bill of sale. The agreement was a collateral one, and was not within the plain words of the Act or their fair meaning. Then it was said that the son was not properly described as a mantle manufacturer. The first question was whether it was a material misdescription. The father was tbe liquidating debtor, and the deed must be void (if at all) as against his trustee. It was the father who really gave the bill of sale. The son joined in the deed, but the property did not belong to him, and be had nothing to give. The Act meant that the bill of sale must be registered quoad the person whose credit would be afiected. The joinder of a person who had no interest, and who had nothing to assign, was mere surplusage. Then it was said that the description of the father was not aconrate, because he was described as a partner with his son. But all that the Act required to be stated was the residence and occupation of the giver of the bill of sale. Was the occupation of the father the less truly described because the deed went on to say that he was in partnership with the son P His lordship thought not. These words were mere surplusage. They were not (n any way misleading. If tbey were, it might be necessary to consider whether they could in any way cut down the previous description. His lordship thought that the father's occupation was sufficiently desoribed, and that it would be straining the Act to hold that the additional words rendered the description untrue. Lindley, L.J., said that £242 was the sum advanced by the grantee to the grantors, and that sum In ordinary parlance was called, and was rightly called, the consideration for the deed. It would be straining the words of the Act to say that the parol agreement was part of the consideration. It was part of the bargain whioh resulted in the consideration, but not part of the consideration itself. It was obviously not a defeazance. Nor was it a condition. The Aot did not require that a bill of sale should state every part of

« PreviousContinue »