Page images
PDF
EPUB
[merged small][merged small][merged small][merged small][ocr errors][merged small]

DUCATION.-To Solicitors and other

HE MORTGAGE INSURANCE COR-E Professional Men and Gentlemen of Limited InTHE

PORATION, LIMITED.
AMOUNT OF CAPITAL SUBSCRIBED, £710,000
Offices of the Corporation-
Winchester House, Old Broad-street, E.C.
Rt. Hon. E. PLEYDELL BOUVERIE, Chairman.
Sir SYDNEY H. WATERLOW, Bart., Deputy-Chairman.

come.-A few boys, sons of the above, are admitted into a well-known School of high tone on greatly reduced fees.-For full particulars address, in strict conadence, "MU." care of Messrs. Relfe Bros., 6, Charterhouse-buildings, Aldersgate, City, E.C.

Policies are now being issued by this Corporation NORWAY, First-class Paste gerere every

insuring Mortgages of Freehold and Leasehold
Property, holders of Mortgage Debentures and
Debenture Stock, against loss of principai and in-
terest.

These Policies will be of especial advantage to
Trustees who may be held responsible for losses
consequent upon their Investments.

Mortgagors insuring with the Corporation will also be enabled to obtain Advances at the lowest 16 10 possible rate of interest.

MILNER'S SAFES

816

MILNER'S SAFES

For Books and documents

816

[ocr errors]

MILNER'S SAFES

For Church Plate ...

19 5

[ocr errors][ocr errors]
[blocks in formation]

The Corporation also grants Policies to Lease-
holders insuring the return of the Amount invested
at the expiration of their leases or at any fixed
16 0 periods.
For particulars and conditions of Insurance apply
to the Secretary.
By order,

52 5

[ocr errors][ocr errors]

68 4 5,000 0

[blocks in formation]

JAS. C. PRINSEP, Secretary.

SIX per CENT. GUARANTEED MORTGAGE
BONDS.

LOMBARD INVESTMENT COMPANY.

-Capital paid up. 1,000,000 dols.; Liability of
Shareholders, 1,000,000 dols.; Surplus and Reserve,
250.000 dols.; Total, 2,250,000 dols. (£450,000).
Head Office-Boston, Mass., Mr. B. Lombard, jun.,
President.
Western Office-Kansas City, Mo. Mr. J. L. Lom-
bard, Vice-President and Manager.
Sole Agent for Great Britain and Ireland-Mr. H.
Ramsden (Ramsden & Austin, Solicitors), 150,
Leadenhall-street, London, E.C.

The Company is prepared to receive money for in-
vestment in First Registered Mortgages of Freeholds
in the States of the United States of America, for five
years, yielding 6 per cent. interest, payable by coupons
half-yearly in London, principal and interest
guaranteed by the Company. For full information
as to these investments apply to the London Office.

[blocks in formation]

TORWAY.-First-class Passenger Steamer Tuesday evening; from Bergen every Saturday evening. Fares: £3 single, £5 return (available any time during the season), including all meals and steward's fees.-BORRIES, CRAIG, & Co., Newcastleon-Tyne.

SUMMER TOURS IN SCOTLAND

GLAS

LASGOW and the HIGHLANDS (Royal Route via Crinan and Caledonian Canals). Royal Mail Steamer COLUMBA or IONA from Glasgow Daily at 7 a m., from Greenock at 9 a.m., conveying, in connection with his West Highland Steamers, passengers for Oban, Fort- William. Inverness, Lochawe, Skye, Gairloch, Staffa, Iona, Glencoe, Stornoway, &c. Official Guide, 3d.; Illustrated, 6d. and 1s., by post, or at W. H. Smith & Sons' Railway Bookstalls. Time Bill with Map and Fares free from the owner, DAVID MACBRAYNE, 119, Hope-street, Glasgow.

[blocks in formation]

ENRY GREEN, Advertisement Agent, begs to direct the attention of the Legal Profession to the advantages of his long experience of upwards of forty years, in the special insertion of all pro forma notices, &c., and hereby solicits their continued support.N.B. One copy of advertisement only required, and the strictest care and promptitude assured. Official stamped forms for advertisement and file of "London Gazette kept. Bv appointment.

MESSRS, PUTTICK & SIMPSON, Literary

and Fine Art Auctioneers, 47, Leicester-square London, W.C., beg to inform Executors, Trustees, Solicitors, and the Trade, that their Season for the disposal by Auction of Libraries of Books and Music, Engravings, Paintings, and other works connected with the Fine Arts, Musical Instruments, and all descriptions of Valuable Property, will commence on October 17, and that their warehouses are open daily for the reception of goods consigned to them for sale. Messrs. P. & S. will hold several important Sales during the Season, and will include small properties in appropriate Sales, thus affording the same advantages to small as to large consignments. Libraries INTE- and other properties catalogued, arranged, and valued for Probate and Legacy Duty, or for Public or Private Sale.

[ocr errors]
[ocr errors]
[ocr errors]

...

...

£582,000
198,000

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

REVERSIONARY and

13,000
£3,297,000

LIFE

RESTS in LANDED or FUNDED PROPERTY
or other Securities and Annuities PURCHASED, or Loans
or Annuities thereon granted, by the EQUITABLE RE-
VERSIONARY INTEREST SOCIETY (LIMITED), 10,
Lancaster-place, Waterloo Bridge, Strand. Established
1835. Capital, £500,000. Interest on Loans may be
capitalized.
Joint
F. S. CLAYTON, }
C. H. CLAYTON, Secretaries

[blocks in formation]

LAW AND GENERAL STATIONERS,

1 & 2, CHANCERY LANE LONDON E.C.

Law Copping and Engrossing.

Deeds and Writings engrossed and copied on the Premises
with punctuality and dispatch, at the lowest scale of
charges. A good Discount allowed on agreed accounts
LAW PRINTING.

STATEMENTS OF CLAIM AND DEFENCE, AFFI-
DAVITS, and other PLEADING, Printed at 1s. per folio.
DEEDS, CONVEYANCES, MORTGAGES, &c., Printed
in form for Registration.

Discount allowed for cash on agreed accounts.
LITHOGRAPHY.

ABSTRACTS, BRIEFS, PETITIONS,

[blocks in formation]

BANK..
Southampton-buildings, Chancery-lane.
THREE per CENT. INTEREST allowed on
DEPOSITS, repayable on demand.
TWO per CENT. INTEREST on
ACCOUNTS calculated on the minimum monthly
balances, when not drawn below £100.

CURRENT

The Bank undertakes for its Customers, free of
Charge, the Custody of Deeds, Writings, and other
Securities and Valuables; the collection of Bills or
Exchange, Dividends, and Coupons; and the purchase
and sale of Stocks, Shares, and Annuities. Letters of
Credit and Circular Notes issued.

The BIRKBECK ALMANACK, with full particu-
lars, post-free, on application.

FRANCIS RAVENSCROFT, Manager.

URNISH your HOUSES or APART-
MENTS THROUGHOUT on
MOEDER'S HIRE SYSTEM.
The original, best, and most liberal.
Founded A.D. 1868.

Cash prices. No extra charge for time given.
Particulars, estimates, Press opinions, testimonials
post-free.

F. MOEDER, 248, 249. and 250, Tottenham-court

PARCHMENT AND LEGAL PAPERS road, and 19, 20, and 21, Morwell-street, W. Estab

[blocks in formation]

ALSO for HIRE ONLY.

MADAME TUSSAUD'S EXHIBITION,

BAKER-STREET STATION.-Latest addition, Grand Group representing the Pope Leo XIII. giving an audience at the Vatican, surrounded by Cardinals, Monsignors, Nobles, Guards, &c.; the Boudoir Group of Fashion, containing the newest and most costly costumes, with other Court Dresses; the complete line of British Monarchs from William the Conqueror to Queen Victoria; magnificient and imposing spectacle; over 400 Portrait Models of celebrated and distinguished characters. Admission, 18. Children under twelve cd. Extra room 6d. Open from 8 a.m. till 10 p.m.

MESSRS, JOHNSON & DYMOND beg

to announce that their Sales by Auction of Plate, Watches, Chains, Jewellery, Precious Stones, &c., are held on Mondays, Wednesdays, Thursdays, and Fridays.

The attention of Solicitors, Executors, Trustees, and others is particularly called to this ready means for the disposal of Property of deceased and other clients.

In consequence of the frequency of their sales Messrs. J. & D. are enabled to include large or small quantities at short notice (if required).

Sales of Furniture held at private houses. Valuations for Probate or Transfer. Terms on application to the City Auction Rooms (established 1793), 38 and 39, Gracechurch-street, E.C.

Messrs. Johnson & Dymond beg to notify that their Auction Sales of Wearing Apparel, Piece Goods, Household and Office Furniture, Carpets, Bedding, &c., are held on each day of the week Saturday excepted).

[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

TEMPLE and EMPLE CHAMBERS (Residential and Royal Courts of Justice, Lincoln's-ina, and the Strand, and within five minutes' walk of the City; central and quiet, with immediate rail and omnibus conveyance to all parts of town. Hydraulic lifts, heating by steam radiators, perfect sanitary arrangements, &c. Rents of remaining rooms to let, from £20 to £90. Suites, £100 to £250.-Apply to the Secretary or the Steward, on the premises, Temple Chambers, Temple-street, E.C.

[blocks in formation]

719

chancery business will take place every Wednesday, commencing on Wednesday, the 17th of August. The chief clerks of Mr. Justice KAY will take the chamber business, and Mr. Justice 720 KEKEWICH will, until further notice, sit in chambers every 719 Wednesday at 10.30, being half an hour before the time of his sitting in court. It is to be observed that the notice varies the terms of preceding notices by stating that "the chambers of Mr. Justice KAY will be open during the vacation," in place of on certain days in every week during the vacation. Whether this means an alteration in the practice remains to be seen. 709

711

706 710

...705

Reg.v. Northampton County Court
Judge

707

705

713

717

Richardson, In re, Shuldham v.
Royal National Lifeboat Institu-
tion
Stoneham v. Ocean Assurance Co. 716

710

Topham v. Booth
715
Watson, In re, Carlton v. Carlton.. 711
Watson, In re, Ex parte Phillips.. 709

THERE HAVE BEEN two satisfactory announcements this week in the House of Commons with regard to the Land Transfer Bill. It is not to be divided, and the Government are considering whether it should be referred to a select committee. On Monday evening Mr. SHAW LEFEVRE asked whether the Government would assent to the suggestion that the clauses of the Bill relating to inheritance

The Solicitors' Journal and Reporter. and the abolition of primogeniture, to which there was no oppo

LONDON, JULY 23, 1887.

[blocks in formation]

66

THE APPOINTMENT of the additional chancery taxing master will be hailed with satisfaction by the profession, partly on the ground that Mr. RYLAND is a most suitable man to fill the post, and partly because his appointment increases the number of the taxing masters to nine. Mr. RYLAND is a practitioner who has always been, as he has described himself, a working solicitor," that is, he has given attention personally to the details of practice and procedure. His figure has for many years been a familiar object in the offices, and he is well known to, and respected by, all the chancery officers. The satisfaction which will be felt on account of the increase of the number of taxing masters is somewhat marred by the fact that Mr. WALKER, who was recently appointed from the District Registry at Manchester, has already broken down in health, and is now absent from his duties on leave for several months.

LORD JUSTICE FRY has since Tuesday last been absent from court on account of indisposition. The judges sitting in Court of Appeal No. 2 called in the aid of Lord Justice LINDLEY on Thursday, and on that day there was no sitting of Court of Appeal No. 1. There is not a sufficient number of interlocutory appeals ready to provide a whole day's work, so that the assistance of some of the presidents of divisions must be called in if the hearing of appeals is to proceed.

sition from the Liberal side of the House," should be separated from the rest of the Bill, "which would give rise to much discussion." Mr. SMITH's reply was that the Government were exceedingly anxious to pass the Bill as a whole, and that it was not desirable to take part out of it. In other words, the object of the Government is, as we have thought all along, land transfer, and they are not disposed to give all the jam out of the tart to the Liberal side of the House this year in order to find the "discussion" of the crust exclusively reserved for them next session. he was aware that the Conveyancing Act and Settled Land Acts In reply to Mr. H. FOWLER the next night, Mr. SMITH etated that had been very carefully considered by a select committee, and that it would tend to the advantage of the Land Transfer Bill if a similar course could now be pursued also. The second reading (fixed for last Thursday) is accordingly put off for the Government to consider the question. A select committee would be useful, bat the committee suggested by the Council of the Incorporated Law Society would be much better. Meanwhile, it may be observed that this amending Act bids fair to outgrow its parent stem before it passes into law. Though its number of sections is only 69 and 2 schedules as against 129 in the Act of 1875, yet, if pages are counted, the 1875 Act is only 38, while the present Bill has got to 34, and is still growing.

IT WILL BE SEEN from the report of the Council of the Incorporated Law Society (ante, p. 631) that the Bill which the Council are promoting with are promoting with a view to protect purchasers against the danger disclosed in the case of Re Pope (34 W. R. 654, 693, 17 Q. B. D. 743), proposes to make all writs, processes of execution, and orders for enforcing judgments, statutes, or recognizances void as against a purchaser for value unless registered at the Central Office, and also provides that a bankruptcy shall not affect a purchaser for value unless the receiving order is registered. The Bill also protects purchasers against statutory charges for improvements, drainage, or other purposes, unless they are registered at the Central Office; and provides that the clauses of the Conveyancing Act, 1882, as to official searches shall apply to the registers and entries proposed to be created and made; and also provides for the making of general rules by the judges and the presidents for the time being of the Incorporated Law Society and one of the provincial law societies, followAct, 1881. We regret extremely that the Lord Chancellor has not seen his way to affording facilities for the introduction of this Bill during the present session. We believe that, notwithstanding all the attempts which have been made to explain away Re Pope, the remark with which our recent series of articles on Searches commenced-viz., that "no purchaser of land can safely pay his purchase-money "-is now admitted to be correct. Surely this state of things calls for immediate remedy, and we should have thought that the effect which the amendment proposed by the Bill would have in facilitating the first registration of land under any land transfer system would have inclined the present Government to promote the Bill by all the means in its power. Stranger still does it seem that no effectual provision should have been made in the Land Transfer Bill for removing the difficulty as regards

MR. MUNTON (who was backed by the Council of the Incor-ing in this respect the precedent of the Solicitors' Remuneration porated Law Society) is to be congratulated on having again succeeded in clipping the wings of the Middlesex Registry. The rule nisi for a mandamus, obtained by him in May last, was on Wednesday made absolute by a divisional court, and the result is that town witnesses may now depose to a deed before a London commissioner, instead of being required to attend at the registry. This result, besides the great convenience to witnesses, involves a gain by the commissioners in fees of something like £3,000 or £4,000 a year. The action of the council in this matter of the registry will be warmly approved by their London constituents.

FROM THE NOTICE as to vacation business, which will be found in another column, it will be seen that the Vacation Sittings for

registered land.

Clause 24, providing for the registration of I were right, on the ground that, to constitute an offence of damaging real property within the section, there must be actual damage to the realty itself, and that mere damage to the product growing upon the realty was insufficient. From the occurrence of the word "spoil" in the section, we have some doubt as to the correctness of the decision, and it is at any rate to be regretted that, the case being a criminal one, no appeal lies. The offence apparently cannot be brought within any of the sections (ss. 31-37) of the Larceny Act, 1861, which deal with "larceny of things attached to or growing on land," those sections only applying to trees or shrubs or cultivated roots or plants. There is therefore apparently no criminal remedy for the farmer who has his mushrooms gathered and taken away at once in the usual way, but he has a civil remedy, which will usually be practically worthless.

rights in or over land, enables provision to be made by rules for registering in subsidiary registers (inter alia) “(d.) any writ, execution, process, or order affecting the land"; but the benefit of this provision is destroyed by the subsequent clause-"(2) Nothing in this Act, or in any rules under this Act, shall make registration under this section compulsory.' It would seem to be the simplest matter in the world to take (d.) out of this section and make a distinct section of it, providing that any writ, &c., affecting the land shall be registered. This would afford a satisfactory remedy as regards registered land; but we hope to see the more general proposals of the Council of the Incorporated Law Society passed into law next session.

OUR READERS will find a case of Harvey v. Olliver reported in another column, relating to the costs which will be allowed last Saturday in a case of Story v. Story and O'Connor. The A NOVEL POINT of divorce practice arose before Sir JAMES HANNEN on an appointment of new trustees. There has been a singular lack of authority on some of the questions involved in the petitioner sued for a dissolution of marriage and for damages, while decision, and disputes with regard to them have not been infre- the respondent made recriminatory charges of adultery against her quent. On the first point noticed by Mr. Justice KAY, however, had been guilty of adultery, and they assessed the damages at husband. The jury found that the respondent and co-respondent we apprehend there could be no doubt. The proper costs of appointing new trustees, under a power contained in the instru- £300; but they also found that the petitioner had committed ment creating the trust, always fall on the trust estate. This adultery, and thereupon the President, acting under the provision of seems to have been regarded as settled so long ago as 1859, for section 31 of the Divorce Act, 1857 (20 & 21 Vict. c. 85), that "the Sir JOHN ROMILLY, M.R., said, in Carter v. Sebright (26 Beav., at court shall not be bound to pronounce such decree if it shall find that p. 376), that, on an appointment of new trustees, "the costs are dismissed the petition. Then arose the question as to the effect of the petitioner has, during the marriage, been guilty of adultery," paid out of the estate generally, or out of corpus." But the ques- this decision upon the co-respondent, who, in his answer, had not tion of difficulty always is, What are proper costs? We should have thought that the costs of the donee of the power, consisting denied the acts of adultery, but only the marriage between the of the bill of the solicitor acting for the donee, relating to point, but it was suggested that, since section 33 of the Divorce petitioner and the respondent. There was no authority on the obtaining the consents of, and appointing, the new trustees, Act, 1857, enables a husband to claim damages from an adulterer, were unquestionably proper; and, except on the technical either in a petition for dissolution of marriage or for judicial ground taken by the taxing master, we are at a loss to see how these costs (apart, of course, from particular items) separation, or in a petition limited to such object only," the cocould be said to be improper. But the new trustees had respondent could not avail himself of the circumstances which had paid to the executor of the last surviving trustee expenses in-caused the court to dismiss the petition, the two issues being curred by him before the appointment of new trustees, in connec- refusal of the decree involved the failure of the petitioner's right independent of one another; but the President held that the tion with the administration and proposed transfer of the trust estate. The executor refused to transfer the trust estate until to damages. these costs had been paid. Mr. Justice KAY allowed these costs, saying that it was for the defendants to shew that they were not charges which the original trustees were entitled to make against the trust estate, and the defendants had not shewn this. Again, the new trustees had incurred costs in examining by their own solicitor into the condition of the trust estate (which consisted, we believe, largely of investments on mortgage) and into the validity of their appointment. These costs also were allowed, the learned judge remarking that it was not only the right, but the duty, of new trustees to inquire into the condition of the estate of which they were to be trustees. The case was one of great complication, and we have not been able hitherto to ascertain the details of the costs; but it seems probable that there may be ultimately extracted from the decision some principles which will be of service to the

advisers of new trustees.

FARMERS will be distressed to learn that mushroom-gathering is not a criminal offence. It was held in the recent case of Gardner (Appellant); Mansbridge (Respondent), that mushroom-gathering was not within the Malicious Injuries to Property Act, 1861 (24 & 25 Vict. c. 97). The information was laid under section 52 of the Act, which enacts that "whosoever shall wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever for which no punishment is hereinbefore provided" [i.e., in the preceding sections of the Act, which embrace most imaginable specific injuries to specific kinds of property] shall, on conviction thereof, either be committed to prison or forfeit and pay such sum, not exceeding five pounds, as to the justice shall seem meet. In Mr. GARDNER's case the mushrooms grew in a wild state on his farm, and were a source of profit to him. The respondent picked mushrooms to the value of two shillings, but did no damage to the grass or fences. The justices dismissed a summons under the section above mentioned, and the court (A. L. SMITH and WILLS, JJ.) has held that they

THE RIGHTS OF MIDDLEMEN.

NOTHING illustrates better the mode in which the common law of this country has adapted itself to the requirements of a mercantile community than the treatment by the courts of the claims of commission agents or middlemen. To the bare employment to sell a house, an estate, or a ship the law has attached a number of implied terms and stipulations, which it would take very many words to express, but which the daily practice of business men has shewn to be necessarily involved in the transaction. Thus a contract on the face of it simple, involving but one consideration and a corresponding promise, becomes in a court of law a complex and somewhat intricate agreement, with many stipulations on either side.

To illustrate this we will consider the ordinary case, of most usual occurrence, where the owner of a property simply requests an estate agent to find a purchaser. Here, of course, there is an implied promise to pay for the services of the agent, and at first sight this is all that the contract discloses. But the disputes which have arisen as to the rights of the parties under an agreement apparently so simple have been as numerous as, perhaps, have arisen in connection with any kind of transaction, and have resulted in the evolution of many implied stipulations which lay dormant under the simple form of contract, until one by one they have been exposed in deference to the exigencies of justice or the acknowledged practice of the business concerned. It will not be out of place to state as briefly, but as exhaustively, as possible what, according to well-known and long approved decisions, is really the engagement involved in the bare employment of an agent to let or sell property.

The employer is at liberty to employ as many other agents as he likes to do the same office, and if any other agent succeeds in performing the service, with however little labour, there is no liability to him who was first engaged, however great the trouble and expense to

July 23, 1887.

THE SOLICITORS' JOURNAL.

which the agent first employed may have been put. As it is expressed, the agent or middleman is paid for the success of the services which he offers to give. In this respect the contract is anomalous and in antagonism to the fundamental principle which entitles a man to remuneration which he has undertaken at another's request.

Another respect in which the contract of the middleman is anomalous is this, that he has no right to insist upon a continuance of the authority given him, nor, if it is withdrawn, can he rely upon the averment that he was ready and willing to perform the contract entered into. In Simpson v. Lamb (4 W. R. 328, 17 C. B. 603) the defendant employed the plaintiff, a clerical agent, to sell an advowson for him for commission at the rate of five per cent. on the purchase-money. The defendant afterwards, without communicating with the agent, sold the living himself to a person with whom the agent had had no communication. The agent sued for wrongful revocation of authority. It was held that he could not recover, as an agent's authority is not "coupled with an interest," but it was intimated by the court that, had he incurred trouble or expense, he would have been entitled to compensation. As we have seen, even this right would not have remained to him had the principal sold through another agent.

Such being some of the more important stipulations attaching by implication to the bare employment of middlemen, it is unnecessary to say that all or any of these may be excluded by express agreement of the parties. In the words of Lord Justice Bowen in a recent case in the Court of Appeal (Millar v. Toulmin,* 34 W. R. 695, 17 Q. B. D. 603):-"Without special words in each particular case, the mere approach of the employer to the person who is employed, if the person employed is a middleman, is sufficient to raise the inference that the contract is in the usual form, and the ordinary form has been by habits of business crystallized into that form of contract; but a person, even in regard to these contracts, may make a contract in a special form if he chooses: he need not adopt the ordinary terms of employment into which the habits of business men have moulded the implied contract. It is for a jury to say

what is the contract in such cases."

In the great majority of cases which have come before the courts it has happened that the contract was the ordinary one, resulting from bare employment without special terms. The question for decision has generally had reference to the performance of it. It is of frequent occurrence for an owner who has property to sell, let, or pledge to deal with persons with whom he has been brought in contact by the action of the agent, but with whom he negotiates directly. In the decision of such cases the courts follow the rule that it is the introduction which is to be regarded, rather than the conduct of the negotiations or the completion of the contract. Thus, in the case of Green v. Bartlett (14 C. B. N. S. 681), where an agent was employed to sell the Island of Herm on the terms that he should be paid commission on the price if he sold it, but if he failed he should be paid £25 to cover expenses, it appeared that the agent, having failed to dispose of the property at the auction held for the purpose, the principal afterwards withdrew the property from the agent's hands, paying him the £25. The owner subsequently sold to a person who had heard of him and his property at the agent's auction room. The court held that the agent, under these circumstances, was entitled to the commission on the sale price, upon the ground that the relation of buyer and seller between the parties was really brought about by him. The effect of this case, as stated by Willes, J., in Curtis v. Nixon (24 L. T. 706), is to substitute the agreement made by the owner for that which the agent would have made. The case of Mansell v. Clements (9 C. P. 139) illustrates how strong is the claim of an agent through whose action a purchaser has been put in treaty with his principal,

and how little will entitle him to his full commission in such a case, while from Wilkinson v. Alston (48 L. J. C. P. 733) it is to be gathered that his claim will not be defeated on account of the intervention of other persons between him and the buyer. The case of Millar v. Toulmin involves an interesting question on one branch of this subject, on which we refrain from comment until the decision of the House of Lords has been given.

It remains only to add that the agent will not forfeit his right to commission because the bargain between the principal parties falls

* This case is now being heard on appeal in the House of Lords.

64I

through, provided he has introduced a person willing to fulfil the conditions of the bargain which he was employed to negotiate (Fisher v. Drewett, 27 W. R. 12; Prickett v. Badger, 5 W. R. 117, 1 C. B. N. S. 296). In the words of Lord Cairns in Green v. Lucas (33 L. T. 584) it would be forcing the liability of agents if they were to be held liable for what happened after the introduction. If the contract goes off from the caprice of the principal or the infirmity of his title, it is immaterial to the agent.

CORRESPONDENCE.

THE INCORPORATED LAW SOCIETY'S ACCOUNTS. To the Editor of the Solicitors' Journal.] Sir,-Will you permit me to correct a serious error made last week by your reporter? I did not state at the annual meeting of the Incorporated Law Society that the society's income had increased. The reverse is the case. I stated at that meeting that it has decreased £124 9s. 1d. These figures have been officially admitted to be correct. I will, with your leave, take this opportunity of saying that I regard Mr. Pennington's explanation of the increase in the expenditure on certain items from £2,936 10s. 8d. in 1884 to £5,503 2s. 4d. in 1886 council has spent a large sum of money over the distribution of as most unsatisfactory and incomplete. Vague assertions that the "rules" are not sufficient. The finances of the society will never be on a satisfactory basis until the council recognize that it is their duty to give much fuller details of their expenditure and to explain in their report the reason for any abnormal disbursement.

[ocr errors]

I will not now say anything about the duty of properly allocating the society's expenditure on "articled clerks" and "registration, although it is remarkable that a similar allocation is always made than lawyers? Are doctors better accountants by the General Medical Council. W. P. W. PHILLIMORE, M.A., B.C.L. July 20.

THE PRELIMINARY EXAMINATION.
[To the Editor of the Solicitors' Journal.]

Sir, I am directed by the council to inclose to you for publication a prospectus of the Preliminary Examination embodying the new regulations which will come into force on and from the 1st of January, 1888.

The regulations as they now stand vary the former regulations only to the following extent :

(1) Candidates are given the option of taking, in addition to elementary Latin, two languages as heretofore, or of taking one language only with algebra, inclusive of simple equations and the first four books of Euclid.

(2) In the language examinations, instead of passages being set from books previously specified, as hitherto, passages will be set for translation at sight, with the assistance of a dictionary. S. W. B. BUCKNILL, Assistant Secretary. Incorporated Law Society, Chancery-lane, W.C., 20th July.

The following is the prospectus referred to:

SUBJECTS OF EXAMINATION IN THE YEAR 1888. 1. Writing from dictation.

2. Writing a short English composition.

rule of three; and decimal and vulgar fractions; (b) algebra_up to 3. (a) The first four rules of arithmetic, simple and compound; the and inclusive of simple equations, and the first four books of Euclid. 4. Geography of Europe and History of England. 5. Latin-elementary.

6. And any two languages to be selected by the candidate out of the following six-namely, (1) Latin, (2) Greek-Ancient, (3) French, (4) German, (5) Spanish, (6) Italian.

obliged to take up algebra or Euclid (No. 36), but if any candidate elects to do so, he may take up these with one only of the languages (No. 6).

With reference to the subjects numbered 3 and 6, no candidate is

No books will be previously specified for the language examina tions, but passages will be given for translation at sight, with the assistance of a dictionary.

The examinations will be held at the Incorporated Law Society's Hall, Chancery-lane, London, and at some of the following towns, in the months of February, May, July, and October of each year:Birmingham, Bristol, Cambridge, Cardiff, Carlisle, Carmarthen Chester, Durham, Exeter, Lancaster, Leeds, Lincoln, Jiverpool, Manchester, Newcastle-on-Tyne, Oxford, Plymouth, Salisbury, Shrewsbury, Swansea, Worcester, York.

Candidates are required to give, at least 30 days before the day appointed for the examination, notice to the secretary of the Incorporated Law Society, of the languages in which they propose to be examined, the town at which they wish to be examined, and their age and residence, and place or mode of education.

All notices should be addressed to the secretary of the Incorporated Law Society, Chancery-lane, W.C. Candidates who fail to pass, or attend at the examination for which they have given notice, may attend at any subsequent examination. A renewed notice must, in that case, be given fourteen days at least before the date of such subsequent examination.

[blocks in formation]

This was an appeal from the decision of a divisional coart (Denman and Mathew, JJ.), reported 35 W. R 497. The plaintiffs were the trustees under the will of E. J. Esdaile, and, as such, were possessed of his interest in the annual sum of £6,500, payable under the following circumstances. The Act 37 Hen. 8, c. 12, provided for the annual payment to the clergy of certain sums of money (which were in the Act called tithes) in respect of houses in the parish of St. Botolph Without, Aldgate. In 1881 E. J. Esdaile was the lay impropriator of those tithes or sums of money, and in that year, by the St. Botolph Without, Aldgate, Act (44 & 45 Vict. c. cxcvii.), it was provided that the annual sum of £6,500 should be paid to the lay impropriator instead of such annual tithes or sums of money, and that such sum should be levied on the persons by law rateable to the poor rates in that parish. In June, 1885, the plaintiffs were rated to the poor rate in respect of the sum of £6,500 as lay impropriators. It was admitted that the tithes or sums of money had never been assessed for the relief of the poor, and that no one had ever been rated in respect of them. The plaintiffs appealed against the rate, and the Court of General Assessment Sessions allowed the appeal, and their decision was upheld by the Divisional Court.

THE COURT (Lord ESHER, M.R, LINDLEY and LOPES, L.JJ.) affirmed their decision. Lord ESHER, M.R., said that, in order to make this sum of money rateable, it must be shewn that it represented tithes within 43 Eliz. c. 2 or payments in lieu of such tithes as were made rateable by that Act. It was clear that the sums of money which were now represented by the annual payment of £6,500 were not tithes in the ordinary sense of the word. They were not payable on land, but on houses. To shew that they were payments in lieu of tithes, however, it must be proved that tithes had existed and had been extinguished. There was no evidence that tithes had ever been payable in the City of London; still less was there any evidence that tithes had existed there and had been extinguished, and that these payments had been substituted for them. It appeared far more likely that these were personal payments for the support of the clergy which were not rateable, and this view received confirmation from the fact that these payments had never been assessed to the poor rate. LINDLEY, L.J., said it would be contrary to the intention of the Legislature to make the annual sum of £6,500 rateable if those payments in respect of which it was given were not rateable. It was incredible, if those payments were rateable, that they would not have been rated before, and it was a fair inference from that fact that they had never been considered as falling within 43 Eliz. c. 2. LOPES, L J., said that these payments had none of the attributes of tithes, which were charges on land and recoverable by distress. If they were payments in lieu of tithes there ought to be some proof of the existence at one time of tithes for which they had been substituted. - COUNSEL, Sir Edward Clarke, S. G., and John Henderson; Sir R. E. Webster, A.G., and Sidney Woolf. SOLICITORS, Baylis & Pearce; Winters & Co.

LEA v. FACEY.-C. A. No. 1, 15th and 16th July. IMPROVEMENT COMMISSIONERS-PENALTY-PUBLIC HEALTH ACT, 1875. This was an appeal from the decision of Wills, J., reported 17 Q B. D. 139. The action was brought to recover a penalty of £50 alleged to have been incurred by the defendant under sections 9 and 15 of the Commissioners Clauses Acts, 1847, by acting as a member of the Board of Improvement Commissioners for Abergavenny under certain local Acts, when he was disqualified from so acting by reason of his being concerned

in a contract made by the commissioners under the authority of such Acts. The defence set up was, inter alia, that the defendant had not received notice of action as required by section 264 of the Public Health Act, 1875, and also that the plaintiff had not obtained the consent of the AttorneyGeneral to the action, as required by the Public Health (Members and missioners Clauses Act, 1847, a board of improvement commissioners was Officers) Act, 1885. By certain local Acts which incorporated the ComHealth Act, 1875, became the urban sanitary authority within such constituted for the district of Abergavenny, which by virtue of the Public district. The defendant was a member of such board, and had acted as such by voting for the imposition of an Improvement Act district rate. The expenses to meet which the rate was made, were, some of them, expenses authorized to be incurred by the local Acts only, some of them authorized to be incurred by the Public Health Act only, and some of them authorized both by the local Acts and the Public Health Act. The plaintiff alleged that the defendant, when so acting, was disqualified by reason of his being lessee from the commissioners of certain premises. The sole question dealt with at the trial was whether the restrictions imposed by the Public Health Act on actions against members of urban sanitary authorities applied to acts done by a member of a board of improvement commissioners, being an urban sanitary authority, in the exercise of the powers of the local Acts. The defendant had not received any notice of action, nor had leave to bring the action been obtained from the Attorney-General. Wills, J., held that the effect of the Public Health Act was to reconstitute the improvement commissioners as new bodies under the Act, and that, therefore, such commissioners, when subsequently acting in exercise of the statutory powers conferred by the local Acts, were acting under the Public Health Act, and were entitled to the protection and privileges given by that Act, and he gave judgment for the defendant accordingly. The plaintiff appealed.

THE COURT (Lord ESHER, M.R., LINDLEY and LOPES, L.JJ.) dismissed the appeal. Lord ESHER, M.R., eaid that two points were raised, first, that the defendant was at the time he acted in point of law not a member of the urban sanitary authority, in consequence of some disqualification, and, secondly, that what he did was done under the local Acts, and not under the Public Health Act, 1875. As to the first point, the evidence was clear that, even if he was disqualified, the defendant bond fide believed that he was a member of the urban sanitary authority, and acted accordingly. That brought him within the case of Hughes v. Buckland (15 M. & W. 346), which decided that a person acting under a bona fide belief was entitled to protection. As to the second point, section 10 of the Public Health Act, 1875, had transferred all rights and powers of a board of improvement commissioners to the sanitary authorities appointed by that Act, and, therefore, when the urban sanitary authority assumed to act under the local Acts, they were in reality acting under the Public Health Act, 1875, and were entitled to the protection given by that Act and by the Act of 1885. LINDLEY and LOPES, L.JJ., delivered judgment to the same effect.-COUNSEL, Cunningham Glen. SOLICITORS, J. F. & G. F. Marshall, for Gabb & Walford.

CREARS v. HUNTER-C. A. No. 1, 12th July. PRINCIPAL AND SURETY--PROMISSORY NOTE-GUARANTOR-FORBEARANCE TO

[ocr errors]

SUE-CONSIDERATION.

Action on a promissory note for £200, payable on demand. In 1876 the defendant's father borrowed £200 from the plaintiff, and in 1877, when the defendant came of age, the plaintiff brought a blank stamped form of promissory note to the house where the defendant and his father were living. There was no evidence as to what occurred then, except that the promissory note was filled in and signed by the defendant and his father as security for the above loan of £200 in the following form:-" We, jointly and severally, promise to pay to W. Crears or his order £200, being money lent, with interest on same, half-yearly, at the rate of 5 per cent. per annum.' The father having died, the plaintiff now sued the defendant upon the note, and the defence set up was no consideration. The jury were of opinion that the defendant signed the note in order that the plaintiff might give time to the father to pay the £200, and the plaintiff did give time. A. L. Smith, J., entered judgment for the plaintiff, but the Divisional Court entered judgment for the defendant, on the ground that there was no consideration for the defendant's signature. The plaintiff appealed. Crofts v. Beale (11 C. B. 172), Oldershaw v. King (2 H. & N. 517), and Miles v. New Zealand Alford Estate Co. (34 W. R. 669, 32 Ch. D. 266) were cited.

THE COURT allowed the appeal. Lord ESHER, M.R., said that though the promissory note on its face did not delay payment of the £200, yet, from the provision as to payment of interest, it shewed that it was intended by the parties that it was not to be sued on at once. There was no agreement by the plaintiff not to sue the father, but the substance of the transaction was that if the defendant signed the note as surety the plaintiff would forbear from suing the father. If a person requests a creditor to forbear from suing the original debtor, and the creditor, though he does not bind himself to forbear, does, as a fact, forbear from suing the debtor, that constitutes a good consideration for that other person becoming guarantor. It was not necessary that there should be a binding promise to forbear. The case of Oldershaw v. King shewed that. The request to for. bear need not be express, but might be implied from the surrounding circumstances. In this case there was evidence from which the jury might infer such a request, and, as a matter of fact, the plaintiff did forbear from suing the father. The judgment of the Divisional Court must be reversed, and the verdict of the jury restored. LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, French, Q.C., and Mattinson; Gully, Q.O., and Henry. SOLICITORS, Speechly, Mumford, & Landon, for Atkinson § Bennett, Whitehaven; Helder & Roberts, for E. Atter, Whitehaven.

« PreviousContinue »