« PreviousContinue »
ficance; and that something in this direction is required may be provisions he discusses. We propose to leave our contributor to express taken for granted. But it is well that we should be clear, both as his views with entire freedom, irrespective of the question of whether they to the extent of the application of the proposed rule, and as to some may or may not accord with those which have been on previous occasions other matters which have an important bearing on it. First, as expressed in this journal. to the application of the rule, it must be recognized that, on
I. several circuits, it would apply to almost the whole cause-list, and that on others, as well as in Middlesex and London, it would The general principles of the Bill of last session were very ably ex. extend to a yery large proportion indeed of the causes. Secondly, plained by Mr. Chamberlain in his speech in the House of Commons on it must not be forgotten that we have already in operation two introducing it. They appear to be, first, the abolition of the present proscales of costs-a higher and a lower—the former of which official receivers in each court; and, thirdly, the appointment of the
ceedings for liquidation or composition; secondly, the appointment of mainly, almost exclusively, prevails in actions brought in the Board of Trade as the governing body in all bankruptcies. But, besides Chancery Division, the latter in actions brought in the Queen's these changes, the Bill proposed a great number of other changes in the Bench Division. If so high a limit as £200 is taken (indeed, with law and practice of importance, but which are apt to be lost sight eyen a lower limit), it may be doubted whether it would not be of in the discussion of the three distinct proposals above stated. It proper to abolish altogether what is now the lower, and would then is the object of these papers more particularly to call attention to those be the intermediate scale, and bring all actions above the limit which we may distinguish as the minor proposals of the Bill, which we within the higher scale. Thirdly, it is a well-known fact that the will do by taking up the various clauses in their numerical order. difference in the method of allowing costs in the Chancery Division
Clauses 1 and 2 being only preliminary, we pass over without any com.
ment, attracts many cases thịther which would not otherwise find their
way Clause 3 is one of the most important in the Bill, and we therefore print there. If the difference of scale now proposed were confined to it at length :the Queen's Bench Division, it is manifest what would be the immediate consequence. It follows therefore, as a matter of menced by a bankruptcy petition presented to the court and praying that a
" Clause 3.-(1.) All proceedings under the principal Act shall be com. course, that it would be necessary to extend the rule to the debtor be adjudged a bankrupt. Chancery Division. In this point of view the recommendation “(2.) A bankruptcy petition may be presented either by a creditor or credihas the advantage of every proposal which tends to harmonize tors or by the debtor. and assimilate the practice. Fourthly, it is an element to be con
"(3.) Part 6 and part 7 of the principal Act relating to liquidation by sidered in the question, and will be (should the proposal be arrangement, and to composition with creditore, are hereby repealed.” adopted) an element in regulating the new scale, how far, on the The proposal contained in this clause appears to be one of the cardinal one hand, the end of diminishing costs may not be attained by principles of the amendments in the law of bankruptcy suggested, and limiting the number of occasions on which, during the progress ment may carry through Parliament. But though the change may be
will probably be insisted upon as part of any measure which the Governof the cause, costs may be incurred, and how far, on the other, the inevitable, it is well to consider fully the effect which it will have, and the alteration in the scale should be an alteration in the amount to be objections thereto which suggest themselves. Now, any practitioner who paid for steps taken. There are two different methods of reducing has had much experience in bankruptcy matters will have known of cases the costs. It may be that both should be applied at once. But where private arrangements have been attempted to be carried without to apply each method just as if the other was not being resorted evlisting the machinery of the bankruptcy laws at all, but which have been to, would be a serious error. The working out of this is no doubt prevented by small creditors refusing to assent thereto from no reasonable a matter of practical detail; but it is important to bear in mind objection to the proposal in itself, but simply in the hope that by holding the principles on which we are proceeding, and to apply each out against it the other creditors who might be desirous of carrying principle where it can be most safely borne. At present we can being paid in full or receiving something more than the rest of the
through the proposed private arrangement would consent to the objector only refer to one point in the report which illustrates this position. creditors. It is not every case that creditors desire, either in their own It is the 6th recommendation, which is as follows :
interests or those of the trading community at large, should be forced “6. Discovery and interrogatories shall be limited to such discovery of into court, and the chief object of the deed system of the Act of 1861 dooumenta or facts relating to any part of the matter in dispate as the
was to provide for such cases. That system became so much abused that master sball order. The costs, unless otherwise ordered, shall be borne in the commercial public called for its abolition, and consequently by the the first instance by the party asking for discovery or interrogatories, and Act of 1869 deeds of arrangement were done away with and the present shall be allowed as part of his costs of suit, where, and where only, such liquidation and composition proceedings introduced. The total repeal of discovery or interrogatories shall appear to bave been reasonably and ase- those proceedings is now called for, and it is proposed in their place to fully asked for."
propide that no composition arrangements shall be binding upon nonErasing from this recommendation the words “and usefully," assenting creditors, however small in number and amount,
Will which make the costs depend on the question whether the inter- this work satisfactorily? It is to a great extent an experiment, and must
an adjudication in bankruptcy and with the approval of the court, rogated party has successfully sworn himself out of the effect of the be tried to be proved. Assuming, however, that this proposal will be questions, we think the proposal would be cordially accepted as rigorously adhered to, we would call attention to the following point properly applicable to all actions; and, with it, will no doubt fall which does not appear to have been present to the mind of the draftsaway a large part of the idle and useless trouble and expense man of the Bill. Under the Acts previous to that of 1869 it was held which at present burden the litigants in both Divisions of the that the title of a creditor's assignee under an adjudication upon a High Court.
debtor's own petition would not relate back to any act of bankruptcy committed prior to the one on which the adjudication proceeded -- viz., the filing of the petition-and it was sometimes necessary, where an ad
judication had been made on a debtor's own petition, to obtain annulment BANKRUPTCY LAW REFORM.
of such adjudication in order that a creditor's petition might be presented, The announcement in our last week's issue that it is the intention of the
80 that the title of the assignees might relate back to enable them to President of the Board of Trade to introduce next session a Bill to con
impeach & fraudulent conveyance or assignment by the bankrupt
an act of bankruptcy. This, of course, entailed considerable solidate the enactments on bankruptcy law has been received with additional expense and delay. Now, by the Act of 1869 debtors' own general satisfaction. The Bill of last session was an amending one only, pecitions for adjudication were abolished, but in substitution therefor but it is presumed that the proposals contained in that Bill will form the petitions for liqnidation were instituted, and it was at first thought that basis of the amendments of the law which will be contained in the Bill under such petitions the trustee's title would not relate back, by analogy to be introduced next session. A criticism of the details of that
to the rule as to adjudications upon debtors' own petitions. But it has measure will, at the present juncture, be of interest, and may afford dation does relate back the same as in bankruptcy. That sub-section
been held under section 125, sub-section 5, that a trustee's title in liquiassistance in elucidating the question and bringing about a satisfactory provides that “all such property of the debtor as would, if he were made settlement. It is obvious, however, that effective criticism on such a subject bankrupt, be divisible amongst his creditors, shall from and after the date must be minute, and must proceed from the pen of some practitioner of of the appointment of a trustee vest in such trustee under a liquidation long experience in bankruptcy matters. We are glad to be able to lay by arrangement, and be divisible amongst the creditors; and all such before our readers, in a series of papers, the results of the investigation of proceedings as would be void against the trustee in the case of a bauk.
settlements, couveyances, transfers, charges, payments, obligations, and the Bill of last session by a gentleman whose experience in the management ruptcy shall be void against the trustee in the case of liquidation by of the bankruptcy business of an important firm of solicitors gives him arrangement.” Without some similar provision it is exceedingly doubtful, the right to speak with great authority on the practical working of the to say the least of it, whether by this Bill the old law would not be re
vived, and consequently a trustee under an adjudication upon a debtor's own petition be debarred from inquiring into prior acts of bankruptcy.
RECENT DECISIONS. With regard to sub-clause 3, we would only point out that, inasmuch as by clause 72, sub-clause 1, of the Bill provision is made for the repeal of the various Acts mentioned in the third schedule thereto to
STATEMENT OF CONSIDERATION IN BILL OF SALE. the extent mentioned in that schedule, and parts 6 and 7 of the
(Ex parte Rolph, In re Spindler, C.A., 30 W. R. 52.) Act of 1869 are included in such schedule, this sub-clause appears The decision in this case is important as defining the limits within unnecessary, and might lead to misapprehension.
which the decision of the Court of Appeal in Ex parte Challinor, In re Clause 4 relates to creditors' petitions, and contains some of the most important of the minor alterations in the law proposed by the Bill. We Rogers (29 W. R. 205, L. R. 16 Ch. D. 260), is operativo. In that case print the clause at length :
Lord Justice James said that “whether the whole of the mortgage money “ Clause 4.-(1.) A creditor's petition shall allege that the debt due from actually paid by the lender into the hands of the borrower, or the debtor to the petitioning creditor, or, if two or more creditors join in the whether part of it is, with his privity, or by his direction, employed in petition, that the aggregate amount of debts due to the several petitioning creditors amounts to a sum not less than twenty pounds, and that the debtor payment of a debt due by him, it is equally, in a legal sense, paid to him. has committed an act of bankruptcy.
The question is whether the transaction was a sham.” Now, in “(2.) The alleged act of bankruptcy must, where no shorter time is fixed by the present case a bill of sale was expressed to be made in consideration this Act, have occurred within six months before the presentation of thepetition. of a sum of £50 paid by the grantee to the grantor at or before the
"(3.) The debt of the petitioning creditor must be a liquidated sum due or growing due.
execution” thereof. Only £21 10s. was, in fact, paid to the grantor; " (4.) If the petitioning creditor is a secured creditor, he must in his peti- for, as requested by a letter (of even date with the bill) signed by the tion either state that he is willing to give up his security for the benefit of the grantor, the grantee retained £3 10s. in respect of expenses of registracreditors in the event of the debtor being adjudicated a bankropt, or give an estimate of the value of his security. In the latter case, he inay be admitted tion, &c.
, and paid £25 seven days later (though the letter said nothing as a petitioning creditor to the extent of the balance of the debi due to him about any delay) to the landlord of the grantor, which latter sum was in after deducting the value so estimated."
the letter stated to be “now due” in respect of rent. At the date of the Sub-clause 1.—The present law fixes the sum of £50 to constitute a bill and letter no rent was due, and, though £12 108. (one quarter's rent) petitioning creditor's debt. What reason is there why that amount fell due two days afterwards, the remaining £12 10s. would not become should be reduced? We have never yet heard that the amount at
due for three months. Here, it will be observed, the sum retained was present required has been complained of in legal or commercial circles as too high, and why should a change be made in this respect for the mere
for a debt not yet due, whereas in Ex parte Challinor the sum retained sake of change? One of the great blots of the Act of 1869 is the
was for professional services and disbursements actually rendered and numerous changes made therein on points of detail from the previous made. In the latter case the court held that the passing of the money Act, apparently for no other purpose than to gratify the whim of from hand to hand was immaterial ; it was the same thing as if the whole somebody or other who evidently knew very little of the working of the mortgage money had been handed to the mortgagor, and he had then law, but wished nevertheless to try his 'prentice hand on the subject. In criticizing other clauses of the Bill, we shall have occasion to call immediately paid his solicitor's account; in which case the money would attention to many of such changes made by that Act, and wbich it is have been properly stated to have been paid " at or þefore ” the execution proposed by this Bill to alter back to the previous law. It is earnestly of the bill of sale. But in Ex parte Rolph there was no payment at the to be hoped that the Government and the Legislature will be warned by request of the mortgagor of the sum retained “at or before" the the experience of the changes made in 1869, and not commit the same execution of the bill of sale. folly by introducing such a totally uncalled-for, and, in our opinion, such an undesirable, change is as proposed by this sub-clause. The proposed reduction will only tend to make it more easy for a debtor to obtain a BARRING OF CREDITOR'S CLAIM IN ADMINISTRATION friendly creditor to petition against him if so required, and, on the other
ACTION. hand, will place a vehicle of oppression too readily in the hands of small creditors, and, we may add, enterprizing solicitors.
(In re Greaves, Bray v. Tofield, M.R., 30 W. R. 55.) Sub-clause 2.—This is the same as the present law, except that the Vice-Chancellor Hart said in Sterndole v. Hankinson (1 Sim. 393) that words, “where no shorter time is fixed by this Act," are new. Those a bill filed by a creditor on behalf of himself and all other creditors words evidently have reference to clause 5, sub-clause (a.), which makes might, under some circumstances, prevent the rule of equity adopted by an execution against a debtor on any legal process, within fourteen days before the presentation of a petition against him, being levied by seizure analogy to the old Statute of Limitations (21 Jac. 1) from being a bar and sale of his goods, an act of bankruptcy. We shall have occasion to
the claim of another creditor who had come in under the decree. remark upon this in dealing with that clause.
Every creditor, he said, had, after the filing of the bill, an inchoate Sub-clause 3.- This is a proposal to return to the law as it stood prior to interest in the suit to the extent of its being considered as a demand. the Act of 1869. The words of section 6 of that Act on this point are, But he, at the same time, carefully restricted the application of the "The debt of the petitioning creditor must be a liquidated şum due at
doctrine. law or in equity." We never could understand why tho previous la w
“ When the circumstances of a case are such," he said, “as had been altered in this respect. It is only an instance of the folly of to make it against conscience to apply the rule framed upon this analogy, making changes for the mere sake of change, and gives force to our
the court will not enforce it. . . I have no doubt that if a creditor remarks upon sub-clause 1. As the law at present stands, it is possible files a bill, and it appears that the rule adopted by analogy to the for a trader to get goods on credit, accept bills of exchange therefor, statute would affect his demand, but that a bill had been before filed by at, say, three or four months' date, and then deliberately realize his another creditor, and that the plaintiff in the second suit had, in conestate, put the money in his pocket, and abscond at his leisure, his creditors being all the time unable to prevent him or make him fidence that the former suit would be prosecuted, abstained from siling bankrupt until the bills mature, or, in other words, until it is too late his bill, the court would not apply its rule. . It would be to do any good; a case of “locking the stable door after the horse has attended with mischievous consequences to estates of deceased debtors if gone."
the court were to lay down a rule by which every creditor would be Sub-clause 4.-This is similar in terms to the concluding part of sec- bound either to file his bill or bring his action. Suits have been instituted tion 6 of the Act of 1869, except that the words, “But he shall, on an application being made by the trustee, within the prescribed time after the
in which creditors, in consequence of the deaths of parties and a variety date of the adjudication, give up his security such trustee for the of other circumstances, have been unable to obtain a decree for two or benefit of the creditors, upon payment of such estimated value," with three years, although every reasonable diligence may huve been used, and which that section concludes, are here omitted. Why should this be so ? if the schedule to most of the reports made in Buits of this nature were By clause 16, sub-clause 6, of the Bill, it is proposed to retain the looked through, it would be found by comparison of dates that two-thirds penalty provided by the words above quoted with respect to a creditor of the creditors might have been shut out by a strict application of the rule,” proving his debt for the purpose of voting and receiving dividend ; Lord St. Leonards in Barningham v. Burke (2 Jo. & Lat. 699) held that then why should not petitioning creditor holding security be liable to the same penaltyp To our mind the reasons are stronger why a peti - this doctrine applied after 3 & 4 Will. 4, c. 27; and in his Real Proptioning creditor should be liable to that penalty than an ordinary erty Statutes (p. 126) he treated Sterndale v. Hankinson as still being creditor seeking to prove his debt. But if this sub-clause be passed as law, although the rule was to be cautiously applied. It will be seen drafted, then there will be no penalty whatever attaching to a secured that the foundation of the rule (which is stated much too broadly in creditor presenting a petition and under-estimating the value of his the marginal note to Sterndale v. Hankinson) is that the creditor had security. We are not aware that such a change has ever been ad vocated, and, in our opinion, the penalty provided by the present law is a most delayed his suit relying ou the prosecution of the existing suit by another wholesome one.
creditor on behalf of himself and other creditors, and that it was un.
desirable to compel each creditor to begin a separate suit to recover his and exactitude seems to have been used in statements of the law. debt, and so have the estate torn to pieces by a multiplicity of suits. The chapter on “the non-conclusion of the contract" contains a very In In re Greaves the Master of the Rolls points out that these reasons
careful summary of the many recent decisions in cases involving the have ceased to exist. The practice of suing by one creditor on behalf question whether there is a concluded contract; a question which often of all, except in the case of real estate, has been abandoned for nearly Hudson v. Buck (26 W. R. 190, L. R. 7 Ch. D. 683), to the effect that the ex.
turns upon very subtle distinctions. The decision of Mr. Justice Fry ia thirty years. And there is no longer any reason to apprehend delay in pression in the memorandum that the contract is subjecċ to the approval of obtaining a decree. "You can get a decree in two days by a summons. the title by the purchaser's solicitor makes the contract conditional, is reYou ought always to get in within a few days. If it is an unopposed ferred to in the notes, but the doctrine involved in that decision is in a subdecree it can be taken at once by summons in chambers, but however sequent note (p. 225) very properly stated to be doubtful, in consequence bitterly opposed it may be, if there is a debt at all, you can get a decree 586, L. R. 4 App. Ca. 321, 322). The 5th chapter of Part IV. contains
of the observations of Lord Cairus in Hussey v. Porne Payne (27 W. R. within a very few days." The result, in the opinion of the learned
an addition, which we must not pass over. We have here in a concise judge, is that the doctrine of Sterndale v. Hankinson no longer applies, form an epitome of the mutual relations between vendor and purchaser and a creditor's claim is barred by the Statute of Limitations although in the absence of stipulation from the time the contract is entered into. an action for administration is commenced with his knowledge, which, if We discussed the question as regards interest on purchase-money in 24 it had been commenced by himself, would have prevented his claim from ment is to be found as is given in the present work; while so many
SOLICITORS' JOURNAL, 287, but we are not aware that so complete a statebeing barred.
important consequences flow from a correct apprehension of these rela. tions, that a clear exposition of them is to be welcomed. Indeed, it needs only a comparison of the judgments in Wall v. Bright (1 Jac.
& W. 494), Lysaght v. Edwards (25 W. R. 778, L. R. 2 Ch. D. REVIEWS.
499), and the recent case of Rayner v. Preston, on appeal (29 W. R. 549,
L. R. 18 Ch. D. 1), to see that even judges have differed considerably as SPECIFIC PERFORMANCE.
to the proper explanation of the respective positions of the vendor and
purchaser in the interval between the contract and completion. In A TREATISE ON THE SPECIFIC PERFORMANCE OF CONTRACTS. By the Honour the last-named case Brett, L.J., seems to have doubted whether the
able Sir EDWARD Fry, one of the Judges of the High Court of vendor is in any degree rightly described as a trustee of the estate for the Justice. Second Edition, by the Author, and WILLIAM DONALDSON purchaser, because of the rule of law that the rents do not belong to the Rawlins, of Lincoln's-inn, Esq.; Barrister-at-Law. Stevens & Sons. purchaser until the proper time for completion; the obvious practical
The treatise on the Specific Performance of Contracts presented to the inconvenience, however, of holding the purchaser entitled to the rents, and profession by Mr. Edward Fry so long ago as the year 1858 has at length the vendor to interest on the purchase-money, before it is certain whether been superseded by a second edition contained in a volume of more than the purchaser will ultimately become the absolute owner, would alone double the bulk of the former one. The present work, however, is some- seem sufficient to support this rule. Nor does the doctrine, laid down by thing more than an ordinary new edition, which too often means in the James, L.J., in the same case, that when the contract is completed by case of law books the mere addition in the text or notes of the more conveyance, the completion relates back to the contract, and it is recent decisions, without any attempt to work out the effect of those ascertained that the relation was throughout that of trustee and cestui decisions on the law to which they apply.
que trust, seem an altogether satisfactory mode of explaining what The original scheme of the book seems to have been followed in the actually takes place. The correct explanation of the matter seems to present treatise, but, beyond as it were the bare skeleton, no part of the turn upon the true answer to the question stated at the outset of the former edition remains intact; the whole has been either re-written or chapter we are discussing-namely, when does the property (or tho revised ; and matter filling about 250 pages has been added. The beneficial ownership, for it is as to that alone that the difficulty arises) author, moreover, has on this occasion been assisted by Mr. Rawlins, to pass from vendor to purchaser ? The answer given is that it passes whom the entire revision of a great part of the present work is due. between the contracting parties by the contract itself, but only sub modo, The arrangement and sub-division of the subject seem to us to be clear or conditionally upon the contract itself being ultimately completed by and good. The ground is first cleared by two preliminary chapters the fulfilment by vendor and purchaser respectively of the mutual explanatory of the nature and extent of the jurisdiction of the court in obligations imposed on them by the contract. Upon the completion of specific performance; and then Parts II., III., and IV. treat exclusively the contract the condition is satisfied, and the equitable estate becomes of the action for specific performance, separate chapters being devoted absolute; but upon the contract coming to an end by any other way to a discussion of the parties to it, the defences to it, and the mode of than by completion, it re-vests in the vendor.” There follows a concise procedure under the Judicature Acts.
epitome of the obligations of vendor and purchaser, for which we must Part V. deals with various important matters incidental to the perform. refer the reader to the work itself. This appears to us as accurate an ance of the contract, but which could not have been adequately discussed explanation as has yet been framed. under any of the foregoing heads, such as conditions of sale, compensa- We think the present edition will not only fully maintain, but increase tion, and the like; and Part VI. with particular kinds of contracts, in the reputation of the former one as the standard work on this particular cluding, amongst others, contracts for the sale of shares, a chapter on
subject. The subject is certainly an important as well as a difficult one, which subject has been added to the present edition. The whole work and possibly it may increase in importance, since the view of the learned divided into sections numbered consecutively, a practice which has the author is that judges will more and more approximate to the rule that effect, we think, of unnecessarily “ chopping up the text, and of which the actual performance of contracts of every kind and class should be we confess we do not see the advantage ; especially as there is a very full enforced, except only where there are circumstances which render such index referring to the pages. The index is well compiled—the various enforcement unnecessary or inexpedient; and that every contract should “
catchwords " being arranged alphabetically beneath the principal head be assumed to be specifically enforceable until the contrary is shown. ings, and there is no attempt to import statements of the law or portions We may add that the notes, so far as we have been able to test them, of the text into it, as is sometimes done. We have tested it and think it seem carefully compiled, and contain references to cases of very recent will be found a valuable part of the work.
date, nor is this accomplished by means of advenda, for the usual long On the matter of the book we necessarily speak with some diffidence. list of addenda is entirely absent. It is to be regretted that the price of The learned author of it has been raised to the bench, and it may be the book should be more than double that of the former edition, for thought presumptuous to criticize what has fallen from his pen. But Mr. the high price of law books is a serious obstacle in the way of many Justice Fry has himself pointed out one reason why this should not pre
who are desirous of studying the law from the best and most recent vent fair criticism, by repudiating the notion that works written or revised by authors on the bench possess a quasi-judicial authority. The first chapter is entirely new, and contains an exbaustive inquiry into the origin and character of the jurisdiction of the court in specific performance,
Sir James Hannen, the President of the Probate and Divorce Division, having from which we gather the statement of a circumstance worthy of special entirely recovered from his recent indisposition, will resume his duties in court remark, that no system of jurisprudence, except that administered in
on Tuesday next. English and our colonial courts, has ever attempted directly to enforce At a meeting of the judges on Saturday at Westminster, the following the actual performance of contracts in their very terms. The inquiry arrangements were made for the winter circuits :-Western-Lord Coleridge into the origin of the jurisdiction is conceded by the writer to be perhaps and Mr. Justice Bowen ; Midland-Lord Justice Baggallay and Mr. Justice needless, and may be of little use to the practitioner; but it is interest- Hawkins ; South-Eastern-Lord Justice Cotton and Mr. Justice Grove ; ing, and not, we think, out of place in a work which aims at being a
Northern-Mr. Baron Pollock and Mr. Justice Chitty; Oxford - Mr. Justice complete treatise on this subject.
Lopes and Mr. Justice North; North-Eastern-Mr. Justice Mathew and Mr. Without attempting to review the whole work, we note many great tice Watkins Williams. North and South Wales are joined to Chester. The
Justice Cave ; North Wales-Lord Justice Lindley ; South Wales-Mr. Jusimprovements upon the first edition. The word “ contract " uniformly adopted throughout, to the exclusion of
is following judges will remain in town :- Mr. Justice Field, Mr. Justice
the word Denman, Mr. Baron Huddleston, Mr. Justice Manisty, and Mr. Justice agreement or other synonymous terms; and generally greater care Stepben.
know, that in almost all cases the serious expense begins with the notice CORRESPONDENCE.
of trial. Then, unless the case lies within a narrow compass (in every sense), huge slices of time are consumed in hunting up and catechising
witnesses. Then-for the moment-money is of no consequence in the LEGAL PROCEDURE.
estimation of the excited litigant in comparison of victory. Then Mr. [To the Editor of the Solicitors' Journal.]
Verdict, Q.C., must, by all means, be retained, very likely to be reviled Sir, --The assurances given by our then president at the July meeting afterwards for not appearing in two courts at the same moment. Then were, I think, generally understood to amount to this: that the members "conduct money" flies about, and cabs, and railways, and telegraphs are at large were to have the earliest knowledge the council could give them lavishly employed, so that articled clerks with a turn for locomotion of the contents of the report of the committee, and that the sugges
have rather a good time of it. And all this glorious hurly-burly not tions of members were to be invited as an assistance to the deliberations improbably results in a reference or a rule for a new trial! Now, to of the council.
prevent this profuse and often futile expenditure is, in the interest of the As a matter of fact, the report was not circulated until some days after litigious public, a desirable thing, and I submit with some confidence it had appeared in your columns, and during the interval the council
that this is in many instances effected by the existing procedure. Those seem to have been deliberating, and to some extent committing them. 20,804 causes over which the report passes so trippingly, if their history selves in advance to certain conclusions. It does not appear quite clear,
were investigated, would in many instances be found to have been thus from the report of the meeting, whether those conclusions have, or have restrained from making their way into court or being squelched on its not, been communicated to the higher powers, but it must be assumed threshold after all the expense had been incurred. that they have not, because such a step would have been in direct con
Upon the question of the abolition of pleadings as at present framed, I tradiction to the spirit of the assurances given. It is to be hoped that
do not presume to speak with confidence. I have often thought, howthey have not, because they appear to adopt, without qualification, a
ever, that “heads," after the manner of the “ abstract" that used to very serious, and in my humble opinion very undesirable, innovation.
accompany the summons for leave to plead several matters,” would, in It is, I think, to be regretted in any case that no remarks were inserted many cases at least, answer the purpose as well, and this I understand our in the paper circulated explanatory of the grounds on which the council president to say is how the council interpret the recommendations of the adopted this part of the report: I refer to the first five recommendations. committee. To abolish written statements altogether would just land us
Before saying, with your permission, a few words on this topic, I in Babeldom. Such“ heads” would still have to be settled by counsel desire to express my concurrence with most of the recommendations of in all but the simplest cases, and as the knowledge and judgment rethe committee, as revised by the council. On the question of appeals it quired would be the same as now, the fees of counsel in that behalf would would be superfluous, to say the least, to add to what has already appeared remain much as at present. May I say, par parenthèse, that I do not in your journal; and I apprehend that there is scarcely any point on quite understand the animosity against counsel which pervades some of which our branch of the profession is more unanimous than in desiring to the speeches one hears in Chancery-lane. Some of the ways of counsel apply the simple and expeditious practice of appeals in the Chancery are, no doubt, irritating. That way they have of not being in two places Division as widely as possible to all contentious business.
at once is particularly so, and I am sure your readers will agree with The limitation of trial by jury in civil causes to a selected class of
me that we solicitors could do the trick much better. They have some actions is another point on which I should have supposed solicitors to be other annoying peculiarities, and so have their clerks. But my own almost unanimous, and, notwithstanding the protest Mr. Kimber appears founded, arise out of transactions with “stars"; and it is as idle to com
limited experience leads me to suspect that such complaints, where well to have made, I still think professional opinion would be found to pre- plain of the humours and exactions of a favourite advocate as of those ponderate decidedly in favour of the proposal. The suggestions which have been made by the council seem to me in
of a favourite prima donna. the right direction in all cases, and I particularly note that of extending creeping over me, but
I will yet hazard a few words on No. 20. I do not
I see you fidget, Sir, and I feel a dread of your waste-paper basket the provisions of ord. 14, r. 1, to actions against tenants holding over. The present procedure offers great facilities to contumacious and can.
quite understand here what is meant by " initial stages.” How far does tankerous tenants.
the term carry us? If (e.g.) to judgment under ord. 14, r. 1, I say Amen. I also concur heartily in the proposed restrictions on appeals and new
I do not see any good and sufficient reason for reducing the scale in such trials. The facility with which the latter are obtained has long appeared twice too wide, though the council apparently think otherwise. I readily
But, further, I am inclined to think the limit of £200 at least to me to amount to a scandal. No. 7 is likewise in the right direction.
But in refraining from any comment on, and apparently adopting, the admit that the costs do in too many cases bear a very undue proportion first five recommendations, the council seem to me to have ignored the
to the value of the subject in dispute, and I have not seldom urged this facts of every-day practice. We are not informed in the report what
fact upon bellicose clients. But this is often due to proceedings reasons the learned masters gave for dissenting from recommendation No. subsequent to trial, which the adoption of other parts of the report would 2, but what must occur (one would think) to any solicitor in general retrench or abolish, or else to the incidents of trial as now ordered. practice is that, while the number of causes with which the Queen's Bench
Here, too, I would venture to suggest that the effect should first be masters have to deal is far larger than that of the causes in the Chancery tried of simplifying procedure in most of the directions indicated by the Division which go to the chief clerks, it is proposed to give the masters report (as amended by our council). It is, no doubt, a short and easy (and, therefore, to impose on them the exercise of) a control over the method to cut down the fees of solicitors, but perhaps it would be more course of each action greatly in excess of any control which the chief judicious, and also more equitable, first to try cutting out the dead wood. clerks exercise or possess. This, on the face of it, looks unpractical, not all round. It is not so even in the county courts, though the solicitors'
Litigation can never, any more than war, be made cheap, that is, cheap to say impracticable, and if one goes on to endeavour mentally to work fees there are scanty enough. out the operation of the plan in any half-dozen actions of the average character, the difficulty becomes still more apparent. I conclude that
In conclusion, I submit that the proposals which I have ventured to every district registrar is to be clothed with similar powers. It is for impugn may be suited to a select class of business and to those who our country friends to say how they like the prospect.
conduct it, but are not suited to the average business of the Queen's But why not try some of the alterations in detail which are suggested Bench Division, nor likely to work beneficially to the public or fairly to in the report before making so startling an experiment ? It is very
the body of the solicitors who practise there.
ONE OF THEM. likely that the present procedure is abused by shifty or embittered litigants, but I venture to submit that the present procedure has not, in THE INCORPORATED LAW SOCIETY'S COMMITTEE. all cases, had fair play. An order for better particulars might sometimes, if made where it is now refused, prevent the more expensive and
[To the Editor of the Solicitors' Journal.} objectionable order for interrogatories. I believe this is not the only Sir, — When I wrote in reference to the allowance for attending the illustration that might be drawn from existing practice, but I would summonses at judges' chambers I was aware of the order empowering the rather hear on this subject those who have more knowledge of chamber masters to allow a fee not exceeding one guinea, to which your corresbusiness than I can pretend to.
pondent in your last week's issue calls attention, but that order has It might not be wholly irrelevant to suggest that some alterations in practically become a dead letter, since it is scarcely ever possible to the mode in which business is conducted at chambers, perhaps even some induce the masters to act upon it, and I do not think that members of addition to the judicial strength (available if the "one-judge" system be the profession ought to be compelled to undertake all the trouble to adopted throughout), might save a good deal of delay, and therefore of which your correspondent refers, in order to induce the masters to vary expense.
their practice, though our thanks are certainly due to him for the sacrifice Recommendation No. 6, if the first sentence be omitted, and the made by him in our interest. council's red ink alteration be adopted, seems to me a proper one.
But Whether the Incorporated Law Society was altogether wise or not in it must not be forgotten (and this remark has been made by another of remitting the consideration of the report on Legal Procedure to a special your correspondents) that these preliminary processes do, in fact, “choke committee depends principally upon the way in which the committee off" a great deal of expensive litigation.
proceeds to deal with the report. If the committee should take a large, Where does the expense of an action lie ? Why, in preparing for, and enlightened, and comprehensive view of the resolution by which they are attending the trial of it. Eminent persons who have never been com constituted, and the chairman and those with whom he may be more pelled to make out bills of costs may not know, but we who have do directly associated co-operate together in proceeding by some defined
method, then there can be no doubt that the society may look for a legalize the suggestions of the Legal Procedure Committee without our useful and valuable report. If, however, the committee should proceed branch of the profession expressing in due time, through the council, without being adequately organized, and if it is to be hampered by too those conclusions which our experience entitles us to form. close an adherence to the technical rules of debate, then it is to be feared If the committee should so desire, there can, of course, be no reason that the result of its labours will not be so successful or satisfactory as why they should not, in the first instance, present a report on the various would otherwise be the case. A large responsibility devolves upon the suggestions of the Legal Procedure Committee, and the council's views chairman of the committee, and perhaps à still larger amount of labour thereon, and then subsequently reconsider the larger questions to which falls upon the secretary, and if Mr. Crowder, who, no doubt as mover of the reference extends. The precedent of a committee of members of the the motion, has been appointed chairman, and the gentleman by whom society having been established, the best justification for repeating the he may be assisted as secretary, resolve that the work shall be done experiment will be found in the wise, able, and exhaustive treatment efficiently and well, then there can be little doubt that the success of the which it is to be hoped the committee now sitting will give to all the committee's labours will be, to a great extent, secured.
matters which are, either directly or indirectly, intrusted to their con. I have some reason to suppose that, as a matter of principle, the com- sideration.
A PRACTISING SOLICITOR. mittee has, by a very large majority, decided to recommend that writs Nov. 30. shall be indorsed as at present, and that statements of claim and defence shall not be abolished. This is a recommendation which, there can be no doubt whatever, will be fully indorsed by the great
ADVERTISEMENTS. body of the profession, and I doubt if the council, in the imperfect
[To the Editor of the Solicitors' Journal.] and inadequate way in which they appear so far to have dealt with
Sir,-Do you not think the enclosed advertisement in the Camberwell, the suggestions of the Legal Procedure Committee on this one point, Peckham, and Dulwich News, under the head of "Law,” requires athave altogether justified that confidence in their wisdom and judgment tention ?' We beg aleo to call your attention to the advertisement headed which, as the representatives of the profession, they should always
strive to secure. True, it was distinctly stated that the council were far from of them in your valuable paper they will cease to appear in future.
“ To the perplexed " in the same paper. Perhaps if some notice is taken unanimous in their recommendations, but, as you have suggested, I think
S., G., & M. that if the council had arrived at no other conclusion than that recorded by their alterations in red ink, it would certainly have been wise on
[The following are the advertisements referred to by our correstheir part to have abstained from committing themselves upon the matter, pondents :upon which it was tolerably well known the members of the society “To the perplexed.-Should you be served with a county court sumgenerally would claim the right to be distinctly heard.
mons, writ, or any legal process, or be in difficulties or trouble of any No doubt the committee's recommendation on the retention of kind, or have debts you cannot recover, apply to Mr. Elwell, 66, Gowriestatements of claim and defence will be supported by a statement of road, Lavender-bill, where & solicitor of great experience in divorce, those powerful reasons which may fairly be urged in support of the probate, and other causes may be consulted free of charge. Arrangements recommendation, and it is to be desired that the committee will not content with creditors without bankruptcy or publicity." themselves with the bare statement of the conclusions to which they may including divorce and probate, every morning from nine to ton, and in
“ Law.-Mr. H. Emerson can be consulted on every point of law, have come. In addition, the committee will, no doubt, take the oppor. tunity of making certain suggestions whereby the method of pro
the evening from seven to ten o'clock, at 29, Stormont-road, Lavender. cedure by statements of claim and defence may be improved. There hill, S.W. Terms moderate. Any person in difficulties should apply imme. seems to be no reason why they should not be put in upon the oath of diately to Mr. Emerson, as above.") the plaintiff and defendant respectively. This might help to make the statements more accurate and less prolix..
There can be little doubt that the committee's recommendation, if accompanied by wise and wholesome restrictions, will not only meet with
CASES OF THE WEEK. the support of the profession, but will help to show the members of the Legal Procedure Committee that, while solicitors are firm in their
ACTION TO RESCIND CONTRACT FOR SALE-MISREPRESENTATION - INQUIRIES determination to support the principle of statements of claim and
MADE BY PURCHASER—ONUS PROBANDI THAT VENDOR'S REPRESENTATIONS defence, they are equally willing that the right to deliver the same should
WERE NOT RELIED ON BY PURCHASER.-In a case of Redgrave v. Hurd, before be so qualified and protected as to prevent any abuse of the system.
the Court of Appeal on the 28th ult., the question was raised whether the Rut, after all, it is of no use to devise the most perfect system of rules defendant to an action to set aside a contract for the purchase of property, on unless there is at the same time a thoroughly effective machinery by the ground that the plaintiff was induced to enter into the contract by which they are to be worked. It seems inevitable that the committee representations made by the defendant as to the value of the property which should deal fully with the question of the jurisdiction and powers of the were uptrue, can successfully resist the action on the ground that the plaintiff masters.
made inquiries for himself, or bad the means of ascertaining all the facts. The The competency and adequacy of this tribunal (with exceptions, of plaintiff in the action claimed the specific performance of an agreement; the course) have been more than once tested and found wanting. The ques- defendant, by his counter-claim, sought to rescind the contract, on the ground tion invariably is, in how short a space of time can the business of the that he was induced to enter into it by misrepresentations made to him by the masters be transacted ? If the tribunal was thoroughly competent it plaintiff. Fry, J., though he held that the plaintiff had made untrue would still be necessary that it should give a fair and patient considera- representations to the defendant, yet held that the defendant must be taken
not to have relied upon these representations, because he made some incomplete tion to the matters submitted for its determination, but this latter con
inquiries for himself
, and had the opportunity, if he bad inquired further, of sideration, even should the tribunal prove competent, seldom seems to ascertaining the facts fully. And his lordship accordingly refused to rescind have much weight.
the contract, and gave judgment for the specific performance. He considered I have sometimes thought that the wholesome and powerful influence that the case of Attwood v. Small (6 C. & F. 232) was an authority for bis which the press of this country never fails to exert might usefully be conclusion. The Court of Appeal (JESSEL, M. R., and BAGGALLAY and Lush, employed in being allowed to attend and take such report as it might think L.JJ.) reversed the decision, and held that the defendaut was entitled to fit of the business in judges' chambers. Publicity of proceedings in courts
reso ission of tbe contract. JESSEL, M. R., said that Altwood v. Small was not of justice has no doubt tended materially to facilitate and advance the
an authority for the view taken by Fry, J. The grounds of the decision in administration of justice ; and to give confidence in the tribunals of the
that case were (1) that there was no fraud ; (2) that the plaintiff had knowledge country. Yet, after all, the true remedy seems tɔ be to assign every
of the facts; (3) that he did not rely on the representation. When a man action to a particular judge, to put the master very much in the position made a representation to induce another to enter into a contract it was to be of a chief clerk, and to let the suitor have the initial stages of his action
inferred that the latter relied on the representations, and, if they were untrue,
The man who made them could not resist an action to rescind the contract submitted for the consideration of the judge when he is dissatisfied unless he showed that the plaintiff had abandoned his reliance on them, or with the decision of the master, not as a matter of appeal but as a
that he bad guch koowledge as was inconsistent with reliance on them. If matter of right, and let the master, as in the case of the chief clerk, be this was not shown by the defendant, the inference that the plaintiff did rely present when the matter is disposed of.
on the representations remained. BAGGALLAY, L.J., said that the mere fact A great number of the appeals which have recently taken place in that a person to wbom untrue representations were made did not avail himregard to interlocutory matters have arisen simply from the extremely self of an opportunity of ascertainiog whether they were true would be po imperfect manner in which the matters had been considered at chambers, answer on the part of the man who had made them. Lush, L.J., said that and if the same method of treatment had in the first instance been the onus was on the man who had made a false representation to prove thut the pursued in reference to those matters as is invariably adopted in the
man to whom it was made had ceased to rely on it, and had relied on bis own Chancery Division of the High Court, especially when the judge sits in knowledge. —SOLICITORS, R. Biale ; J. Holder. chambers, a great many of these interlocutory appeals would never have been heard of.
STATUTE OF LIMITATIONS (3 & 4 WILL. 4, c. 27, s. 34; 37 & 38 Vict. C. I hope the committee of the society will not allow their labours to be 57, s. 1)—ACKNOWLEDGMENT OF TITLE TO LAND AFTER STATUTORY Bar.unduly hurried, or their conclusions rushed. There is ample time to On the 29th ult., the Court of Appeal (Jessel, M. R., and Baggallay and Lush, give a fair consideration to the matter, and they need be under no ap- L.JJ.), in affirming the actual decision of Maline, V.C., in the case of Sanders preheusion that the Lord Chancellor of the judges will be willing to v. Sanders (29 W. R. 413), entirely overruled his ratio decidendi. The Vice