Page images

ficance; and that something in this direction is required may be taken for granted. But it is well that we should be clear, both as to the extent of the application of the proposed rule, and as to some other matters which have an important bearing on it. First, as to the application of the rule, it must be recognized that, on several circuits, it would apply to almost the whole cause-list, and that on others, as well as in Middlesex and London, it would extend to a very large proportion indeed of the causes. Secondly, it must not be forgotten that we have already in operation two scales of costs—a higher and a lower—the former of which mainly, almost exclusively, prevails in actions brought in the Chancery Division, the latter in actions brought in the Queen's Bench Division. If so high a limit as £200 is taken (indeed, with even a lower limit), it may be doubted whether it would not be proper to abolish altogether what is now the lower, and would then be the intermediate scale, and bring all actions above the limit within the higher scale. Thirdly, it is a well-known fact that the difference in the method of allowing costs in the Chancery Division attracts many cases thither which would not otherwise find their way there. If the difference of scale now proposed were confined to the Queen's Bench Division, it is manifest what would be the immediate consequence. It follows therefore, as a matter of course, that it would be necessary to extend the rule to the Chancery Division. In this point of view the recommendation has the advantage of every proposal which tends to harmonize and assimilate the practice. Fourthly, it is an element to be considered in the question, and will be (should the proposal be adopted) an element in regulating the new scale, how far, on the one hand, the end of diminishing costs may not be attained by limiting the number of occasions on which, during the progress of the cause, costs may be incurred, and how far, on the other, the alteration in the scale should be an alteration in the amount to be paid for steps taken. There are two different methods of reducing the costs. It may be that both should be applied at once. But to apply each method just as if the other was not being resorted to, would be a serious error. The working out of this is no doubt a matter of practical detail; but it is important to bear in mind the principles on which we are proceeding, and to apply each principle where it can be most safely borne. At present we can only refer to one point in the report which illustrates this position. It is the 6th recommendation, which is as follows :—

"6. Disoovery and interrogatories shall ba limited to Bach discovery of derailments or facts relating to any part of the matter in dispute Bb the master shall order. The costs, unless otherwise ordered, shall be borne in the first instBBoe by the party asking for discovery or interrogatories, and shall be allowed as part of his costs of suit, where, and where only, saoh disoovery or interrogatories shall appear to have been reasonably and usefully asked for."

Erasing from this recommendation the words "and usefully," which make the costs depend on the question whether the interrogated party has successfully sworn himself out of the effect of the questions, we think the proposal would be cordially accepted as properly applicable to all actions; and, with it, will no doubt fall away a large part of the idle and useless trouble and expense which at present burden the litigants in both Divisions of the High Court.


The announcement in our last week's issue that it is the intention of the President of the Board of Trade to introduce next session a Bill to consolidate the enactments on bankruptcy law has been received with general satisfaction. The Bill of last session was an amending one only, but it is presumed that the proposals contained in that Bill will form the basis of the amendments of the law which will be contained in the Bill to be introduced next session. A criticism of the details of that measure will, at the present juncture, be of interest, and may afford assistance in elucidating the question and bringing about a satisfactory settlement. It is obvious, however, that effective criticism on such a subject must be minute, and must proceed from the pen of some practitioner of long experience in bankruptcy matters. We are glad to be able to lay before our readers, in a series of papers, the results of the investigation of the Bill of last session by a gentleman whose experience in the management oi the bankruptcy business of an important firm of solicitors gives him the right to speak with great authority on the practical working of the

provisions he discusses. We propose to leave our contributor to express his views with entire freedom, irrespective of the question of whether they may or may not accord with those which have been on previous occasions expressed in this journal.


The general principles of the Bill of last session were very ably explained by Mr. Chamberlain in his speech in the House of Commons on introducing it. They appear to be. first, the abolition of the present proceedings for liquidation or composition; secondly, the appointment of official receivers in each court; and, thirdly, the appointment of the Board of Trade as the governing body in all bankruptcies. But, besides these changes, the Bill proposed a great number of other changes in the law and practice of importance, but which are apt to be lost sight of in the discussion of the three distinct proposals above stated. It is the object of these papers more particularly to call attention to those which we may distinguish as the minor proposals of the Bill, which we will do by taking up the various clauses in their numerical order.

Clauses 1 and 2 being only preliminary, we pass over without any comment.

Clause 3 is one of the most important in the Bill, and we therefore print

it at length :—

"Clause 3.—(1.) All proceedings under the principal Act shall be commenced by a bankruptcy petition presented to the court and praying that a debtor be adjudged a bankrupt.

"(2.) A bankruptcy petition may be presented either by a oreditor or creditors or by the debtor.

"(3.) Part 6 and part 7 of the principal Act relating to liquidation by arrangement, and to composition with creditors, are hereby repealed."

The proposal contained in this clause appears to be one of the cardinal principles of the amendments in the law of bankruptcy suggested, and will probably be insisted upon as part of any measure which the Government may carry through Parliament. But though the change may be inevitable, it is well to consider fully the effect which it will have, and the objections thereto which suggest themselves. Now, any practitioner who has had much experience in bankruptcy matters will have known of cases where private arrangements have been attempted to be carried without enlisting the machinery of the bankruptcy laws at all, but which have been prevented by small creditors refusing to assent thereto from no reasonable objection to the proposal in itself, but simply in the hope that by holding out against it the other creditors who might be desirous of carrying through the proposed private arrangement would consent to the objector being paid in full or receiving something more than the rest of the creditors. It is not every case that creditors desire, either in their own interests or those of the trading community at large, should be forced into court, and the chief object of the deed system of the Act of 1861 was to provide for such cases. That system became so much abused that the commercial publio called for its abolition, and consequently by the Act of 1869 doeds of arrangement were done away with and the present liquidation and composition proceedings introduced. The total repeal of those proceedings is now railed for, and it is proposed in their place to provide that no composition arrangements shall be binding upon nonassenting creditors, however small in number and amount, except after an adjudication in bankruptcy and with the approval of the court. Will this work satisfactorily p It is to a great extent an experiment, and must be tried to be proved. Assuming, however, that this proposal will be rigorously adhered to, we would call attention to the following point which does not appear to have been present to the mind of the draftsman of the Bill. Under the Acts previous to that of 1869 it was held that the title of a creditor's assignee under an adjudication upon a 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 adjudication had been made on a debtor's own petition, to obtain annulment of such adjudication in order that a creditor's petition might be presented, so that the title of the assignees might relate back to enable them to impeach a fraudulent conveyance or assignment by the bankrupt as an act of bankruptcy. This, of course, entailed considerable additional expense and delay. Now, by the Act of 1869 debtors' own petitions for adjudication were abolished, but in substitution therefor petitions for liquidation were instituted, and it was at first thought that under such petitions the trustee's title would not relate back, by analogy to the rule as to adjudications upon debtors' own petitions. But it has been held under section 125, sub-section 5, that a trustee's title in liquidation does relate back the same as in bankruptcy. That sub-section provides that " all such property of the debtor as would, if he were made bankrupt, be divisible amongst his creditors, shall from and after the date of the appointment of a trustee vest in such trustee under a liquidation by arrangement, and be divisible amongst the creditors; and all such settlements, conveyances, transfers, charges, payment*, obligations, and proceedings as would be void against the trustee in the cose of a bankruptcy shall be void against the trustee in the case of liquidation by arrangement." Without some similar provision it is exceedingly doubtful, to say the least of it, whether by this Bill the old law would not be rerived, and consequently a trustee under an adjudication upon a debtor's own petition be debarred from inquiring into prior acts of bankruptcy.

With regard to sub-clause 3, vre 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 the extent mentioned in that schedule, and parts 6 and 7 of the Act of 1869 are included in such schedule, this sub-clause appears unnecessary, and might lead to misapprehension.

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 print the clause at length :—

"Clause 4.—(1.) A creditor's petition shall allege that the debt due from the debtor to the petitioning creditor, or, if two or more creditors join in the petition, that the aggregate amount of debts due to the several petitioning creditors amount" to a Iuh not less than twenty pound), and that the debtor has committed an act of bsnkrtiptcy.

"(2.) The alleged act of bankruptcy most, where no shorter time is fixed by this Act, have occurred within tix months before the presentation ot thepeti tion.

"(3.) The debt of the petitioning creditor must be a liquidated sum due or growing due.

"(4.) If the petitioning creditor is a secured creditor, he most in his petition either state that he is willing to give np his security for the benefit of the creditors in the event of tbe debtor being adjudicated a bankrupt, or give an estimate ct tbe value of his security, Ip the latter case, he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him after deducting the value so estimated.''

Sub-clause 1.—The present law fixes the sum of £50 to constitute a petitioning creditor's debt. What reason is there why that amount should be reduced P We have never yet heard that the amount at 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 sake of change? One of the great blots of the Act of 1869 is the numerous changes made therein on points of detail from the previous Act, apparently for no other purpose than to gratify the whim of somebody or other who evidently knew very little of the working of the law, but wished nevertheless to try his 'prentice hand on the subject. In criticizing other clauses of the Bill, we shall have occasion to coll attention to many of such changes made by that Act, and which it is proposed by this Bill to alter back to the previous law. It is earnestly to be hoped that the Government and the Legislature will be warned by the experience of the changes made in 1869, and not commit the same folly by introducing such a totally uncalled-for, and, in our opinion, such •n 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 friendly creditor to petition against him if so required, and, on the other hand, will place a vehicle of oppression too readily in the hands of small creditors, and, we may add, enterprizing solicitors.

Sub-clause 2.—This is the same as the present law, except that the words, "where no shorter time is fixed by this Act," are new. Those words evidently have reference to clause 5, sub-clause (d.), which makes an execution against a debtor on any legal process, within fourteen days before the presentation of a petition against him, being levied by seizure and sale of his goods, an act of bankruptcy. We shall have occasion to remark upon this in dealing with that clause.

Sub-clause 3.—This is a proposal to return to the law as it stood prior to the Act of 1869. The words of section 6 of that Act on this point are, "The debt of the petitioning creditor must be a liquidated sum due at law or in equity." We never could understand why thn previous law had been altered in this respect. It is only an instance of the folly of making changes for the mere sake of change, and gives force to our remarks upon sub-clause 1. As the law at present stands, it is possible for a trader to get goods on credit, accept bills of exchange therefor, at, say, three or four months' date, and then deliberately realize his estate, put the money in his pocket, and abscond at his leisure, his creditors being all tbe time unable to prevent him or make him bankrupt until the bills mature, or, in other words, until it is too late to do any good; a cose of "locking the stable door after the horse has gone."

Sub-clause 4.—This is similar in terms to the concluding part of section 6 of the Act of 1869, except that the words, " But ho shall, on an application being made by the trustee, within the prescribed time after the date of the adjudication, give up his security to such trustee for the benefit of the creditors, upon payment of such estimated value," with which that section concludes, are here omitted. Why should this be so? By clause 16, sub-clause 6, of the Bill, it is proposed to retain the penalty provided by the words above quoted with respect to a creditor proving his debt for the purpose of voting and receiving dividend •, then why should not a petitioning creditor holding security be liuble to the same penalty f To our mind the reasons are stronger why a petitioning creditor should be liable to that penalty thau an ordinary creditor seeking to prove his debt. But if this sub-clause be passed as drafted, then there will be no penalty whatever attaching to a secured creditor presenting a petition and under-estimating the value of his security. We are not aware that such a change has ever been advocated, and, in our opinion, the penalty provided by the present law is a most wholesome one.


STATEMENT OF CONSIDERATION IN BILL OF SALE. (Ex parte Rolph, In re Spindler, C.A., 30 W. R. 52.) The decision in this case is important as defining the limits within which the decision of the Court of Appeal in Ex parte Challinor, In re Rogers (29 W. R. 205, L. R. 16 Ch. D. 260), is operative In that case Lord Justice James said that " whether the whole of the mortgage money is actually paid by the lender into the hands of the borrower, or whether part of it is, with his privity, or by his direction, employed In payment of a debt due by him, it is equally, in a legal sense, paid to him. . . . The question is whether the transaction was a sham." Now, in the present case a bill of sale was expressed to be made in consideration of a sum of £50 paid by the grantee to the grantor "at or before the execution" thereof. Only £21 10s. was, in fact, paid to the grantor; for, as requested by a letter (of even date with the bill) signed by the grantor, the grantee Tetained £3 10s. in respect of expenses of registration, &c, and paid £25 seven days later (though the latter said nothing about any delay) to the landlord of the grantor, which latter sum was in the letter stated to be " now due " in respect of rent. At the date of the bill and letter no Tent was due, and, though £12 10s. (one quarter's rent) fell due two days afterwards, the remaining £12 10s. would not become due for three months. Here, it will be observed, tbe sum retained was for a debt not yet due, whereas in Ex parte Challinor the sum retained was for professional services and disbursements actually rendered and made. In the latter case the court held that the passing of the money from hand to hand was immaterial; it was the same thing as if the whole mortgage money had been handed to the mortgagor, and he had then immediately paid his solicitor's account; in which cose the money would have been properly stated to have been paid "at or before " the execution of the bill of sale. But in Ex parte Rolph there was no payment at tbe request of the mortgagor of the sum retained "at or before" the execution of the bill of sale.


(In re Greaves, Bray v. Tofitld, M.R., 30 W. R. 55.) Vice-Chancellor Hart said in Sterndale v. Hankinson (1 Sim. 393) that a bill filed by a creditor on behalf of himself and all other creditors might, under some circumstances, prevent the rule of equity adopted by analogy to the old Statute of Limitations (21 Jac. 1) from being a bar to the claim of another creditor who had come in under the decree. Every creditor, he said, had, after the filing of the bill, an inchoate interest in the suit to the extent of its being considered as a demand. But he, at the same time, carelully restricted the application of the doctrine. "When the circumstances of a case are such," he said, "as to make it against conscience to apply the rule framed upon this analogy, the court will not enforce it. ... I have no doubt that if a creditor files a bill, and it appears that the rule adopted by analogy to the statute would affect his demand, but that a bill had been before filed by another creditor, and that the plaintiff in the second suit had, in confidence that theJormer suit would be prosecuted, abstained from filing his bill, the court would not apply its rule. ... It would be attended with mischievous consequences to estates of deceased debtors if the court were to lay down a rule by which every creditor would be bound either to file his bill or bring his action. Suits have been instituted in which creditors, in consequence of the deaths of parties and a variety of other circumstances, have been unable to obtain a decree for two or three years, although every reasonable diligence may have been used, and if the schedule to most of the reports made in suits of this nature were looked through, it would be found by comparison of dates that two-thirds of the creditors might have been shut out by a strict application of the rule." Lord St. Leonards in Barningham v. Burke (2 Jo. & Lat. 699) held that this doctrine applied after 3 & 4 Will. 4, c. 27; and in his Real Property Statutes (p. 126) he treated Sterndale v. Hankinson as still being law, although the rule was to be cautiously applied. It will be seen that the foundation of the rule (which is stated much too broadly iu the marginal note to Sterndale v. Hankinson) is that the creditor had delayed his suit relying on the prosecution of the existing suit by another creditor on behulf of himself and other creditors, and that it was un

desirable to compel each creditor to begin a separate suit to recover his debt, and so have the estate torn to pieces by a multiplicity of suits. In In re Greaves the Master of the Rolls points out that these reasons have ceased to exist. The practice of suing by one creditor on behalf of all, except in the case of real estate, has been abandoned for nearly thirty years. And there is no longer any reason to apprehend delay in obtaining a decree. "You can get a decree in two days by a summons. You ought always to get in within a few days. If it is an unopposed decree it can be taken at once by summons in chambers, but however bitterly opposed it may be, if there is a debt at all, you can get a decree within a very few days." The result, in the opinion of the learned judge, is that the doctrine of Sterndale v. Hankinson no longer applies, and a creditor's claim is barred by the Statute of Limitations although an action for administration is commenced with his knowledge, which, if it had been commenced by himself, would have prevented his claim from being barred.



A Treatise On The Specific Performance Of Contracts. By the Honourable Sir EnwARD Fry, one of the Judges of the High Court of Justice. Second Edition, by the Author, and William Donaldson Rawlins, of Lincoln's-inn, Esq., Barrister-at-Law. Stevens & Sons. The treatise on the Specific Performance of Contracts presented to the profession by Mr. Edward Fry so long ago as the year 1858 has at length been superseded by a second edition contained in a volume of more than double the bulk of the former one. The present work, however, is something more than an ordinary new edition, which too often means in the case of law books the mere addition in the text or notes of the more recent decisions, without any attempt to work out the effect of those decisions on the law to which they apply.

The original scheme of the book seems to have been followed in the present treatise, but, beyond as it were the bare skeleton, no part of the former edition remains intact; the whole has been cither re-written or revised; and matter filling about 250 pages has been added. The author, moreover, has on this occasion been assisted by Mr. Rawlins, to whom the entire revision of a great part of the present work is due. The arrangement and sub-division of the subject seem to us to be clear and good. The ground is first cleared by two preliminary chapters explanatory of the nature and extent of the jurisdiction of the court in specific performance; and then Parts II., III., and IV. treat exclusively of the action for specific performance, separate chapters being devoted to a discussion of the parties to it, the defences to it, and the mode of procedure under the Judicature Acts.

Part V. deals with various important matters incidental to the performance of the contract, but which could not have been adequately discussed under any of the foregoing heads, such as conditions of sale, compensation, and the like; and Part VI. with particular kinds of contracts, including, amongst others, contracts for the sale of shares, a chapter on which subject has been added to the present edition. The whole work is divided into sections numbered consecutively, a practice which has the effect, we think, of unnecessarily " chopping" up the text, and of which we confess wo do not see the advantage ; especially as there is a very full index referring to the pages. The index is well compiled—the various "catchwords" being arranged alphabetically beneath the principal headings, and there is no attempt to import statements of the law or portions of the text into it, as is sometimes done. We have tested it and think it will be found a valuable part of the work.

On the matter of the book we necessarily speak with some diffidence. The learned author of it has been raised to the bench, and it may be thought presumptuous to criticize what has fallen from his pen. But Mr. Justice Fry has himself pointed out one reason why this should not prevent fair criticism, by repudiating the notion that works written or revised by authors on the bench possess a (/»asi-judicial authority. The first chapter is entirely new, and contains an exhaustive inquiry iuto the origin and character of the jurisdiction of the court in specific performance, from which we gather the statement of a circumstance worthy of special remark, that no system of jurisprudence, except that administered in English and our colonial courts, has ever attempted directly to enforce the actual performance of contracts in their very terms. The inquiry into the origin of the jurisdiction is conceded by the writer to be perhaps needless, and may be of little use to the practitioner; but it is interesting, and not, we think, out of place in a work which aims at being a complete treatise on this subject.

Without attempting to review the whole work, we note many great improvements upon the first edition. The word "contract" is uniformly adopted throughout, to the exclusion of the word agreement or other synonymous terms; and generally greater care

and exactitude seems to have been used in statements of the law. The chapter on "the non-conclusion of the contract" contains a very careful summary of the many recent decisions in cases involving the question whether there is a concluded contract; a question which often turns upon very subtle distinctions. The decision of Mr. Justice Fry in Hudson v. Buck (26 W. R. 190, L. R. 7 Ch. D. 683),tothe effect that the expression in the memorandum that the contract is subject to the approval of the title by the purchaser's solicitor makes the contract conditional, is referred to in the notes, but the doctrine involved in that decision is in a subsequent note (p. 225) very properly stated to be doubtful, in consequence of the observations of Lord Cairns in Hussey v. Home Payne (27 W. R. 586, L. R. 4 App. Ca. 321, 322). The 5th chapter of Part IV. contains an addition, which we must not pass over. We have here in a concise form an epitome of the mutual relations between vendor and purchaser in the absence of stipulation from the time the contract is entered into. We discussed the question as regards interest on purchase-money in 24 Solicitors' Journal, 287, but we are not aware that so complete a statement is to be found as is given in the present work; while so many important consequences flow from a correct apprehension of these relations, 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. 499), and the recent case of Raynerv. Preston, on appeal (29 W. R. 549, L. R. 18 Ch. D. 1), to see that even judges have differed considerably as to the proper explanation of the respective positions of the vendor and purchaser in the interval between the contract and completion. In the last-named case Brett, L.J., seems to have doubted whether the vendor is in any degree rightly described as a trustee of the estate for tho purchaser, because of the rule of law that the rents do not belong to the purchaser until the proper time for completion; the obvious practical inconvenience, however, of holding the purchaser entitled to the rents, and the vendor to interest on the purchase-money, before it is certain whether the purchaser will ultimately become the absolute owner, would alone seem sufficient to support this rule. Nor does the doctrine, laid down by James, L.J., in the same case, that when the contract is completed by conveyance, the completion relates back to the contract, and it is ascertained that the relation was throughout that of trustee and cestui que trust, seem an altogether satisfactory mode of explaining what actually takes place. The correct explanation of the matter seems to turn upon the true answer to the question stated at the outset of the ohapter we are discussing—namely, when does the property (or tho beneficial ownership, for it is as to that alocn that the difficulty arises) pass from vendor to purchaser? The answer given is that it passes "as between the contracting parties by the contract itself, but only sub modo, or conditionally upon the contract itself being ultimately oompleted by the fulfilment by vendor and purchaser respectively of the mutual obligations imposed on them by the contract. Upon the completion of the contract the condition is satisfied, and the equitable estate becomes absolute; but upon the contract coming to an end by any other way than by completion, it re-vests in the vendor." There follows a concise epitome of the obligations of vendor and purchaser, for which we must refer the reader to the work itself. This appears to us as aocurate an explanation as has yet been framed.

We think the present edition will not only fully maintain, but increase the reputation of the former one as the standard work on this particular subject. The subject is certainly an important as well as a difficult one, and possibly it may increase in importance, since the view of the learned author is that judges will more and more approximate to the rule that tho actual performance of contracts of every kind and class should be enforced, except only where there are circumstances which render such enforcement unnecessary or inexpedient; and that every contract should be assumed to be specifically enforceable until the contrary is shown. We may add that the notes, so far as we have been able to test them, seem carefully compiled, and contain references to cases of very recent date, nor is this accomplished by means of addenda, for the usual long list of addenda is entirely absent. It is to be regretted that the price of the book should be more than double that of the former edition, for the high price of law books is a serious obstacle in the way of many who are desirous of studying the law from the best and most recent sources.

Sir James Hannen, the President of the Probate and Divorce Division, hiving entirely recovered from his recent indisposition, will resume his duties in court on Tuesday next.

At a meeting of the judges on Saturday it Westminster, the following arrangements were made for the winter circuits :—Western—Lord Coleridne and Mr. Justice Bewen ; Midland—Lord Justioe Baggallay and Mr. Justice Hawkins; South-Eistern—Lord Justice Cotton and Mr. Justice Grove; Northern—Mr. Baron Pollock aud Mr. Justice Chitty; Oxford—Mr. Justice Lopes and Mr. Justice North; North-Eastern—Mr. Justice Mathew and Mr. Justice Cave; North Wales—Lord Justice Lindley; South Wales—Mr. Justice Watkins Williams. North and South Wales are joined to Chester. The following judges will remain in town:—Mr. Justice Field, Mr. Jmtce Deoman, Mr. Baron Huddleston, Mr. Justice Manisty, and Mr. Justice Stephen.


LEGAL PROCEDURE. [To the Editor of the Solicitors' Journal."] Sir,—The assurances given by our then president at the July meeting were, I think, generally understood to amount to this: that the members at large were to have the earliest knowledge the council could give them of the contents of the report of the committee, and that the suggestions of members were to be invited as an assistance to the deliberations of the council.

As a matter of fact, the report was not circulated until some days after it bad appeared in your columns, and during the interval the council e. em to have been deliberating, and to some extent committing themselves in advance to certain conclusions. It does not appear quite clear, from the report of the meeting, whether those conclusions have, or have not, been communicated to the higher powers, but it must be assumed that they have not, because such a step would have been in direct contradiction to the spirit of the assurances given. It is to be hoped that they have not, because they appear to adopt, without qualification, a very serious, and in my humble opinion very undesirable, innovation.

It is, I think, to be regretted in any case that no remarks were inserted in the paper circulated explanatory of the grounds on which the council adopted this part of the report: I refer to the first five recommendations.

Before saying, with your permission, a few words on this topic, I desire to express my concurrence with most of the recommendations of the committee, as revised by the council. On the question of appeals it would be superfluous, to say the least, to add to what has already appeared in your journal; and I apprehend that there is scarcely any point on which our branch of the profession is more unanimous thAn in desiring to apply the simple and expeditious practice of appeals in the Chancery Division as widely as possible to all contentious business.

The limitation of trial by jury in civil causes to a selected class of actions is another point on which I should have supposed solicitors to be almost unanimous, and, notwithstanding the protest Mr. Eimber appears to have made, I still think professional opinion would be found to preponderate decidedly in favour of the proposal.

The suggestions which have been made by the council seem to me in the right direction in all cases, and I particularly note that of extending the provisions of ord. 14, r. 1, to actions against tenants holding over. The present procedure offers great facilities to contumacious and cantankerous tenants.

I also concur heartily in the proposed restrictions on appeals and new trials. The facility with which the latter are obtained has long appeared 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 first five recommendations, the council seem to me to have iguored the facts of every-day practice. We are not informed in the report what reasons the learned masters gave for dissenting from recommendation No. 2, but what must occur (one would think) to any solicitor in general practice is that, while the number of causes with which the Queen's Bench masters have to deal is far larger than that of the causes in the Chancery Division which go to the chief clerks, it is proposed to give the masters (and, therefore, to impose on them the exercise of) a control over the course of each action greatly in excess of any control which the chief clerks exercise or possess. This, on the face of it, looks unpractical, not to say impracticable, and it one goes on to endeavour mentally to work out the operation of the plan in any hnlf-dozen actions of the average character, the difficulty becomes still more apparent. I conclude that every district registrar is to be clothed with similar power3. It is for our country friends to say how they like the prospect.

But why not try some of the alterations in detail which are suggested in the report before making so startling an experiment? It is very likely that the present procedure is abused by shifty or embittered litigants, but I venture to submit that the present procedure has not, in all cases, had fair play. An order for better particulars might sometimes, if made where it is now Tefused, prevent the more expensive and objectionable order for interrogatories. I believe this is not the only illustration that might be drawn from existing practice, but I would rather hear on this subject those who have more knowledge of chamber business than I can pretend to.

It might not be wholly irrelevant to suggest that some alterations in the mode in which business is conducted at chambers, perhaps even some addition to the judicial strength (available if the " one-judge " system be adopted throughout), might save a good deal of delay, dial there/ore of expense.

Recommendation No. 6, if the first sentence be omitted, and the council's red ink alteration be adopted, seems to me a proper one. But it must not be forgotten (and this remark has been made by another of your correspondents) that these preliminary processes do, in fact, " choke off" a great deal of expensive litigation.

Where does the expense of an action lie? Why, in preparing for, and attending the trial of it. Eminent persons who have never been compelled to make out bills of costs may not know, but we who have do

know, that in almost all cases the serious expense begins with the notice 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 estimation of the excited litigant in comparison of victory. Then Mr. Verdict, Q.C., must, by all means, be retained, very likely to be reviled afterwards for not appearing in two courts at the same moment. Then "conduct money " flies about, and cabs, and railways, and telegraphs are lavishly employed, so that articled clerks with a turn for locomotion have rather a good time of it. And all this glorious hurly-burly not improbably results in a reference or a rule for a new trial! Now, to prevent this profuse and often futile expenditure is, in the interest of the litigious public, a desirable thing, and I submit with some confidence that this is in many instances effected by the existing procedure. Those 20,804 causes over which the report passes so trippingly, if their history were investigated, would in many instances be found to have been thus restrained from making their way into court or being squelched on its threshold after all the expense had been incurred.

Upon the question of the abolition of pleadings as at present framed, I do not presume to speak with confidence. I have often thought, however, that "heads," after the manner of the "abstract" that used to accompany the summons " for leave to plead several matters," would, in many cases at least, answer the purpose as well, and this I understand Out president to say is how the council interpret the recommendations of the committee. To abolish written statements altogether would just land us in Babeldom. Such " heads" would still have to be settled by counsel in all but the simplest cases, and as the knowledge and judgment required would be the same as now, the fees of counsel in that behalf would remain much as at present. May I say, par parenthese, that I do not quite understand the animosity against counsel which pervades some of the speeches one hears in Chancery-lane. Some of the ways of counsel are, no doubt, irritating. That way they have of not being in two places at once is particularly so, and I am sure your readers will agree with me that we solicitors could do the trick muoh better. They have some other annoying peculiarities, and so have their clerks. But my own limited experience leads me to suspeot that Buch complaints, where well founded, arise out of transactions with "stars "; and it is as idle to complain of the humours and exactions of a favourite advocate as of those of a favourite prima donna.

I see you fidget, Sir, and I feel a dread of your waste-paper basket creepiug over me, but I will yet hazard a few words on No. 20. I do not quite understand here what is meant by " initial stages." How far does the term carry us? If (e.g.) to judgment under ord. 14, r. 1, I say Ameu, I do not see any good and sufficient reason for reducing the scale in such cases. But, further, I am inclined to think the limit of £200 at least twice too wide, though the council apparently think otherwise. I readily admit that the costs do in too many cases bear a very undue proportion to the value of the subject in dispute, and I have not seldom urged this fact upon bellicose clients. But this is often due to proceedings subsequent to trial, which the adoption of other parts of the report would retrench or abolish, or else to the incidents of trial as now ordered.

Here, too, I would venture to suggest that the effect should first be tried of simplifying procedure in most of the directions indicated by the report (as amended by our council). It is, no doubt, a short and easy method to cut down the fees of solicitors, but perhaps it would be more judicious, and also more equitable, first to try cutting out the dead wood.

Litigation can never, any more than war, be made cheap, that is, cheap all round. It is not so even in the county courts, though the solicitors' fees there are scanty enough.

In conclusion, I submit that the proposals which I have ventured to impugn may be suited to a select class of business and to those who conduct it, but are not suited to the average business of the Queen's Bench Division, nor likely to work beneficially to the public or fairly to the body of the solicitors who practise there. One Op Them.

[To the Editor of the Solicitors' Journal.]

Sir,—When I wrote in reference to the allowance for attending the summonses at judges' chambers I was aware of the order empowering the masters to allow a fee not exceeding one guinea, to which your correspondent in your last week's issue calls attention, but that order has practically become a dead letter, since it is scarcely ever possible to induce the masters to act upon it, and I do not think that members of the profession ought to be compelled to undertake all the trouble to which your correspondent refers, iu order to induce the masters to vary their practice, though our thanks are oertainly due to him for the sacrifice made by him in our interest.

Whether the Incorporated Law Society was altogether wise or not in remitting the consideration of the report on Legal Procedure to a special committee depends principally upon the way in which the committee proceeds to deal with the report. If the committee should tako a large, enlightened, and comprehensive view of the resolution by which they are constituted, and the chairman and those with whom he may be more directly associated co-operate together iu proceeding by some defined.

method, then there can be no doubt that the society may look for a useful and valuable report. If, however, the committee should proceed without being adequately orgauized, and if it is to be hampered by too close an adherence to the technical rules of debate, then it is to be feared that the result of its labours will not be so successful or satisfactory as would otherwise be the case. A large responsibility devolves upon the chairman of the committee, and perhaps a still larger amount of labour falls upon the secretary, and if Mr. Crowder, who, no doubt as mover of the motion, has been appointed chairman, and the gentleman by whom he may be assisted as secretary, resolve that the work shall be done efficiently and well, then there can be little doubt that the success of the committee's labours will be, to a great extent, secured.

I have some reason to suppose that, as a matter of principle, the committee has, by a very large majority, decided to recommend that writs 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 body of the profession, and I doubt if the council, in the imperfect and inadequate way in which they appear so far to have dealt with the suggestions of the Legal Procedure Committee on this one point, have altogether justified that confidence in their wisdom and judgment which, as the representatives of the profession, they should always strive to secure. True, it was distinctly stated that the council were far from unanimous iu their recommendations, but, as you have suggested, I think 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 their part to have abstained from committing themselves upon the matter, upon which it was tolerably well known the members of the society generally would claim the right to be distinctly heard.

No doubt the committee's recommendation on the retention of statements of claim and defence will be supported by a statement of those powerful reasons which may fairly be urged in support of the recommendation, and it is to be desired that the committee will not content themselves with the bare statement of the conclusions to which they may have come. In addition, the committee will, no doubt, take the opportunity of making certain suggestions whereby the method of procedure by statements of claim and defence may be improved. There seems to be no reason why they should not be put in upoD the oath of 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 the support of the profession, but will help to show the members of the Legal Procedure Committee that, while solicitors are firm in their determination to support the principle of statements of claim and defence, they are equally willing that the right to deliver the same should be so qualified and protected as to prevent any abuse of the system.

But, after all, it is of no use to devise the most perfect system of rules unless there is at the same time a thoroughly effective machinery by which they are to be worked. It seems inevitable that the committee should deal fully with the question of the jurisdiction and powers of the masters.

The competency and adequacy of this tribunal (with exceptions, of course) have been more than once tested and found wanting. The question invariably is, in how short a space of time can the business of the masters be transacted? If the tribunal was thoroughly competent it would still be necessary that it should give a fair and patient consideration to the matters submitted for its determination, but this latter consideration, even should the tribunal prove competent, seldom seems to have much weight.

I have sometimes thought that the wholesome and powerful influence which the press of this country never fails to exert might usefully be employed in being allowed to attend and take such report as it might think fit of the business in judges' chambers. Publicity of proceedings in courts of justice has no doubt tended materially to facilitate and advance the administration of justice; and to give confidence in the tribunals of the country. Yet, after all, the true remedy seems to be to assign every action to a particular judge, to put the master very much in the position of a chief clerk, and to let the suitor have the initial stages of his action submitted for the consideration of (he judge when he is dissatisfied with the decision of the master, not as a matter of appeal but as a matter of right, and let the master, as in the case of the chief clerk, be present when the matter is disposed of.

A great number of the appeals which have recently taken place in regard to interlocutory matters have arisen simply from the extremely imperfect manner in which the matters had been considered at chambers, and if the same method of treatment had in the first instance been pursued in reference to those matters as is invariably adopted in the Chancery Division of the High Court, especially when the judge sits in chambers, a great many of these interlocutory appeals would never have been heard of.

I hope the committee of the society will not allow their labourB to be unduly hurried, or their conclusions rushed. There is ample time to give a fair consideration to the matter, and they need be under no apprehension that the Lord Chancellor or the judges will be willing to

legalize the suggestions of the Legal Procedure Committee without our branch of the profession expressing in due time, through the council, those conclusions which our experience entitles us to form.

If the committee should so desire, there can, of course, be no reason why they should not, in the first instance, present a report on the various suggestions of the Legal Procedure Committee, and the council's views thereon, and then subsequently reconsider the larger questions to which the reference extends. The precedent of a committee of members of the society having been established, the best justification for repeating the experimeut will be found in the wise, able, and exhaustive treatment which it is to be hoped the committee now sitting will give to all th e matters which are, either directly or indirectly, intrusted to their consideration. A Practising Solicitoe.

Nov. 30.


[To the Editor of the Solicitors' Journal.']

Sir,—Do you not think the enclosed advertisement in the Camberwell, Peckham, and Dulwich News, under the head of "Law," requires attention? We beg also to call your attention to the advertisement headed "To the perplexed " in the same paper. Perhaps if some notice is taken of them iu your valuable paper they will cease to appear in future.

S., G., & M.

[The following are the advertisements referred to by our correspondents:—

"To the perplexed.—Should you be served with a county court summons, writ, or BDy legal process, or be in difficulties or trouble of any kind, or have debts yon cannot recover, apply to Mr. Elwell, 66, Gowrieroad, Lavender-hill, where a solicitor of great experience in divorce, probate, and other causes may be consulted free of charge. Arrangements with creditors without bankruptcy or publicity."

"Law.—Mr. H. Emerson can be consulted on every point of law, inoluding divorce and probate, every morning from nine to ten, and in the evening from seven to ten o'clock, at 29, Stormont-road, Lavenderhill, S.W. Terms moderate. Any person in difficulties should apply immediately to Mr. Emerson, as above."]


Action To Rescind Contract For SaleMisrepresentation—Inquiries Made By PurchaserOnus Probandi That Vendor's Representations Were Not Relied On By Purchaser.—In a case of Redgrave v. Surd, before the Court of Appeal on the 28ch ult., the question was raised whether the defendant to au action to set aside a contract lor the purchase of property, on the ground that the plaintiff was induced to enter into the contract by representations made by the defendant as to the value of the property which were untrue, can successfully resist the action on the ground that the plaintiff made inquiries for himself, or had the means of ascertaining all the facts. The plaintiff in the action claimed the specifio performance of an agreement; the defendant, by his counter-claim, sought to rescind the contract, on the ground that he was induced to enter into it by misrepresentations made to him by the plaintiff. Fry, J., though he held that the plaintiff had made untrue representations to the defendant, yet held that the defendant must be taken not to have relied upon these representations, because he made some incomplete inquiries for himself, and had the opportunity, if he had inquired further, of ascertaining the facts fully. And his lordship accordingly refused to rescind the contract, and gave judgment for the specific performance. He considered that the case of Atlwoud v. Small (6 C. * F. 232) was an authority for Lis conclusion. The Court of Appeal (jessel, M.K., and Bag OA LI AT and Lush, L.J J.) reversed the decision, and held that the defendant was entitled to rescission of the contract. Jessel, M.R., said that Attwood v. Small was not an authority for the view taken by Fry, J. The grounds of the decision in that case were (1) that there was no fraud ; (2) that the plaintiff had knowledge of the facts; (3) that he did not rely on the representation. When a man made a representation to induce another to enter into a contract it was to be 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 unless be showed that the plaintiff had abandoned his reliance on them, or that he bad such knowledge as was inconsistent with reliance on tbem. If this was not shown by the defendant, the inference that the plaintiff did rely on the representations remained. Baogallay, L.J., said that the mere fact that a person to whom untrue representations were made did not avail himself of an opportunity of ascertaining whether they were true would be no answer on the part of the man who nad made them. Lush, L.J., said that the onus was on the man who had made a false representation to prove thut the man to whom it was made had ceased to rely on it, and had relied on his own knowledge.—Solicitors, S. Biale; J. Holier.

Statute or Limitations (3 & 4 Will. 4, c. 27, s. 34; 37 & 38 Vict. C. 57,8.1)—Acknowledgment Of Title To Land After Statutory Bar.— On the 29ih ult., the Court of Appeal (Jessel, M.R., and Baggallay and Lush, L.JJ.), in affirming the actual decision of Maline, V.C., in the case of Sanders v. Sanders (29 W. li. 413), entirely overruled his ratio decidendi. The Vic«

« PreviousContinue »