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So matters remained from 1818 to 1872. But in the latter year from lack of repair, or (as Mr. Justice Kekewich said in Royal there occurred the decision of Phillips v. Sylvester (21 W. R. 179, Bristol Permanent Building Society v. Bomash) from damage done 8 Ch. 173). In that case there had been nearly six years' delay: by a tenant on the removal of fixtures, or from the breaking of in completion, admittedly solely attributable to the purchaser, who windows or anything of that kind. had wrongly claimed a small piece of land as included in the But on the question at what time does the vendor's liability purchase contract. There was no question as to the title, but the cease, we are left very much in the dark by the recent case. If vendor had (as he was entitled to do) refused to give possession of the words of the judgment in Phillips v. Sylvester are to be the property until the purchase-money was paid ; and, in the followed, it continues so long as the vendor, under any circummeantime, he had allowed the property to remain unlet and stances, remains in possession of the property sold. But in that entirely neglected. It was held by Lord Selborne that, although case the vendor refused to give possession to the purchaser. In the the delay in completion was solely due to the purchaser, and recent case the purchaser refused to take possession, or enter, although the vendor, in refusing to give up possession, was acting into receipt of rents, until the vendors could give vacant posseswithin bis right, yet he was liable to the purchaser for the amount sion, but, as Mr. Justice Kekewich held that the vendors had conof rent which might have been received, and for the deterioration tracted to give vacant possession, they were in default, and the which had occurred in the property. The grounds of the decision purchaser was justified in his refusal. It seems to us that no were these :-By the effect of the purchase contract the right to case has yet decided that a vendor's liability continues after he the property passes to the purchaser; the right of the vendor has shewn a good title according to the conditions of sale, and is turned into a right to receive the purchase-money, for has offered to give possession to the purchaser; and we think that which he has a lien on the land until the purchase-money where completion is likely to be delayed owing to questions not is paid. He is therefore in the same position as any other relating to the title, the safe course for the vendor is to offer to person would be, who, having security on land, insisted on give such possession or receipt of rent as may be stipulated for in the possession of the land as further security.”' That is to the purchase agreement. Bay, the vendor who retains possession until completion does so in the character of mortgagee in possession. It may, we think, be safely said that up to this decision no one had dreamt of ascribing this character to the possession of the vendor. In Sherwin IS COMPULSION REALLY NECESSARY FOR THE v. Shakspear (5 De G. M. & G. 517) it was expressly decided by
ESTABLISHMENT OF REGISTRATION OF TITLE ? the Lords Justices that a vendor who has to account to a purchaser
II. for rents and profits from the time fixed for completion is not, In our last article we reminded our readers of the ill-success of the unless a special case be made, liable to account for sums which he Act of 1862, and how that had given rise to a suspicion of the might have received but for his wilful default, nor entitled to an selfish opposition of solicitors, and a surmise that the failure of the inquiry as to repairs or lasting improvements. “There is a vast Act was mainly due to that cause. We also shewed that the best distinction,” said Lord Justice Turner (p. 536), “ between the possible judges—namely, the Royal Commissioners of 1868-after position of a vendor and that of a mortgagee who enters into pos- giving the matter their very serious attention, entirely acquitted session of the estate. The mortgagee, when he enters, enters under the profession of all blame. We consider this to have a direct a condition imposed on him by this court of exercising the utmost bearing on the subject before us—"whether compulsion be really diligence for the benefit of himself and the mortgagor; but in the necessary ?"_because, as will afterwards appear, we find the case of a vendor, the vendor does not take, but remains in, posses- principal strength of the demand for compulsion, even at the sion of the estate. It may ultimately appear that the estate of present day, rests on the ground of this mistrust of solicitors as a which he is in possession may never become the estate of the pur- body, and so no inquiry into the validity of that demand can chaser at all; and I think that if he continues in the due and possibly be of the slightest value which does not give full weight ordinary course of management it is not the course of this court to to this aspect of the matter. charge him, upon the principle of his having been converted into the After proving that the solicitors were not the cause of the position of a mortgagee for the purchase-money.” This was failure of the Act of 1862, the commissioners proceed to say what, the law as
understood by one of the most accurate and in their opinion, the causes were. The two main causes they careful judges who ever sat on the bench; and it will be seen mention are, first, that the avenue to the register was practically that is is in direct conflict with the singular doctrine laid down closed to the majority of landowners by the difficulty of proving a by Lord Selborne. It appears, moreover, from Mr. Justice Keke- perfect title; and, second, that the system pursued in registering wich’s valuable and interesting judgment in the recent case of subsequent dealings was too complicated to give satisfaction to Royal Bristol Permanent Building Society v. Bomash (35 Ch. D. even the small number of landowners who succeeded in navigating 390) that, on Phillips v. Sylvester subsequently coming before Sir their estates over the formidable “harbour bar” just mentioned. George Jessel, M.R., on further consideration, that eminent judge To remedy the first difficulty the report (paragraph 75) advised expressed a strong disapproval of Lord Selborne's decision, and that the species of registration now known as Possessory Title," and the well-known passage in 2 Dart's V. & P. (5th ed.) 650, in for the second (paragraph 72) that the system of registration purwhich the decision is severely criticized, had the approval of the sued should be limited to registering fee simples and leaseholds, so late Master of the Rolls. Mr. Justice Kekewich in the recent as to enable the practice to be assimilated more closely to that case expressed an opinion that this criticism was sound; and already in operation in the Register of Stock. Both of these sugwe trust it may be anticipated that the strange notion that a gestions were, in fact, carried out by the subsequent Act of 1875. vendor remaining in possession under any circumstances is in the The question of compulsion was not mooted before the commisposition of a mortgagee in possession, will be discarded.
sioners, nor is it mentioned in their report, but it appears to have The true position of the vendor retaining possession was laid been a not infrequent concomitant of schemes for registration of down by the House of Lords in Shaw v. Foster (L. R. 5 H. L. possessory title ever since their first appearance.
This will be 321), where Lord Cairns said that the vendor was a trustee of seen from considering the history of the idea of possessory title, the property for the purchaser ; the purchaser was the real bene- which is as follows: ficial owner, in the eye of a court of equity, of the property, sub The name is not a very fortunate one; it expresses rather the ject only to this observation, that the vendor was not a mere dormant nature of the evidence on which the registration is to take place trustee ; he was a trustee having a personal and substantial interest than the nature of the registration when made. Mr. R. Wilson, a in the property; a right to protect that interest and an active London solicitor, expounded it in 1847 to the Registration and right to assert that interest if anything should be done in Conveyancing Commission (Report, 1850), illustrating it with derogation of it." In other words, the vendor is, as Sir some 200 pages of forms which he had prepared for the purpose, G. Jessel said in Earl of Egmont v. Smith (ubi suprd), "a and which are bound up with the report. Paragraph 639 of the trustee, no doubt with peculiar duties and liabilities, but evidence runs, " Then your first step would be to have a compulhe is a trustee."
His peculiar duties appear to consist in sory registration, in each parish, of the ownership of all the protaking reasonable care that the property sold does not suffer perties? Exactly so." The registration referred to was to be serious deterioration, either, in the case of land, from the destruc-called "provisional registration " (a far better name than possestion of the fences or non-cultivation; or, in the case of buildings, sory"), and was to remain provisional until the expiration of a
given period (not unlike the Chancellor's five years for confirma- operated as a most decided check upon landowners adopting the
rity, Lord Selborne, in 1874, thought the compulsory registration In the report of the next commission, however—the Registration of possessory titles on all sales would be a justifiable provision, and of Title Commission-published in 1857, the question is definitely accordingly included it in his Bill of that year. But Lord Cairns discussed. In paragraph XLVII., page 26, of the report, five was of another opinion (which he always afterwards maintained, different sorts of compulsion are stated ani considered :
even in the face of the failure of his own Act), and, accordingly, (1.) To oblige all owners to make their claims within a given the Act of 1875 was voluntary, like its predecessor. time, on pain of losing their lands should another be registered The failure of the Act of 1875, however, raised a fresh difficulty, owing to such default;
and was marked by a reappearance of the old suspicion. The re(2.). (Apparently) To have a general inquiry into all titles, and port of Mr. Osborne Morgan's Committee of 1878, 1879, does not to register (only) such as were proved sound ;
endorse that suspicion in any way, but it contains the following (3.) To make registration an essential requisite to the legal subject, is next door to admitting the necessity of compulsion :
passage, which, in the present state of the public mind on the completion of any transfer ;
“Rightly or wrongly, the public or their professional advisers have (4.) To render it conclusive as to priority of rival claims in cases deliberately made up their minds that the advantages offered by of conflict.
the new system of registration are too speculative and remote to For various reasons, most of which have since become the compensate for the immediate and certain outlay and trouble common property of all disputants on the subject, the commis- which are inseparable from it. (page v.). They are informed, sioners declined to recommend the adoption of any of the above on the authority of Mr. Follett and Mr. Holt, that no system of modes of compulsion, though not without some difference of registration of titles can be devised which will be voluntarily opinion as to the laet.
adopted" (page iv.). The committee then deprecate compulsion on (5.) To require that properties once voluntarily registered should general grounds, and go on to record their opinion that improvenot be taken off the register. This they recommend.
ments in conveyancing must be sought in other expedients. Our As regards the general question, they propose (paragraphs Lv. own belief is that the failure of the Act of 1875 was principally to LXI., pages 33 to 35) that "registration of title should be two- owing to the apathy shewn by all high personages in relation to fold-one which shall at once enable the registered owner to the matter from the moment the Act was passed down to about transfer the estate with a present or immediate statutory title ; the this time last year.
system other, registration of actual ownership without the power to had been properly (or at all) advertised, and if the transfer an immediate statutory title”-possessory title in short. approaches to the register had been made in the least easy, Only the former of these was, in fact, embodied in either of the if local solicitors had been appointed agents of the office, &c., two Bills introduced into Parliament in 1859, or in the measure matters would probably by this time have been very different. adopted by the Legislature in 1862.
Lord Thring's evidence given to Mr. O. Morgan's Committee tends Then came the failure of the Act of 1862 (already commented to support this view. First, I consider the passing of Lord on), which resulted (as we have seen) in the re-appearance of the Westbury's Act threw a blight over the whole thing; then the two-fold system recommended in 1857. It is evident, however, feeling of the profession is a very conservative one; it is very from the language of the Report of 1870 (paragraph 74) that the difficult to move, and the dead weight of an opposition of that sort commissioners then placed much more reliance on the still is very great” (this we have never disputed) ; "and, lastly, the untried expedient of possessory title than on the absolute title public are not acquainted with the provisions of the Act; or, in system whose fruits had been so scanty. In fact, it was evidently other words, it has not been properly advertised or made public. thought that absolute titles could never be granted on terms short
I told the Government that I was certain the other Act of exorbitant, and so, official assistance having failed to create the had thrown a sort of blight upon the whole system, and that ease and security ultimately aimed at, the assistunce of old Father unless unusual exertions were used it would not be taken advanTime was called in instead. To a possessory title "lap:e of time tage of. Probably there ought to be in the larger places will confer an ever-increasing validity till it becomes marketable agencies. If it were pushed in the way you or I or a in the technical sense and practically indefeasible," and then company would push anything we were concerned in, I think it follows the now classical "filter” metaphor. “It is as though a would succeed” (1879, Evidence, paragraphs 7, 8, 25, 67). filter were placed athwart a muddy stream; the water above re
Meanwhile a new element was exerting a marked and powerful maing muddy, but below it is clear, and, when you get so far down influence on the minds of the commercial community--who have a the stream as never to have occasion to ascend above the filter, it very direct interest in land as a marketable commodity, and as a is the same thing as though the stream was clear from its source” security for debts and engagements-namely, the success of the (Report of 1870, paragraph 75, page xxviii.).
Torrens system in Australasia. Untaught to observe the great Well, would, it have been for possessory title” and all con- differences between the Torrens and the Westbury-Cairns system cerned it had this simple principle been relied on in its integrity, which subsequent study has brought to light, the general public Unfortunately, among one or two other mistakes which we shali has come to the conclusion that the Act of 1875 cannot have had point out further on, it was thought advisable (if we may continue fair play, or else it would have succeeded as the Colonial Acts have. the metaphor) to do a little preliminary dredging above the filter, The subject passed for a time out of the hands of the landowners in the shape of requiring “as a precaution against the entry of a themselves into those of speculative politicians, whose study and purely fictitious title” (Report, paragraph 76), the making of a pre-experience are seldom equal to their enthusiasm and self-confidence, liminary investigation which, in the practice under the resulting and among these there can be no doubt that the demand for com Act, took shape in the making of certain affidavits, the production pulsion is most determined, and is founded on the impression of the last conveyance, and (presumably) its perusal, and the con- )(which has much plausibility' at first sight) that nothing else will sideration of the question whether, by stamping certain deeds pro- do the necessary work of overcoming professional opposition and duced, the fact of the registration could or could not be concealed prejudice. from a person dealing with the land. What harm (except to the applicant himself) the registration of a purely fictitious title could registration in Australia quite as much as they are supposed to
Thus it is in vain that it has been urged that solicitors opposed would be assumed from it by purchasers. This left-handed invesEngland ; in vain is the absurdity pointed out of supposing that, amount of trouble it involved, or appeared capable of 'involving, the landowners, the opposition of all the solicitors is the world
would have sufficed to prevent their availing themselves of it. The have expected some decisions on company law, and here, although it multitude cannot be expected to recognize fine distinctions; their depends so largely on statute, he would have found that modern minds seem almost unalterably made up..
equity had really been at work. Thus quite a new importance has For various reasons, however, the accusation against solicitors been given recently to the possession of share certificates, and the (without which the argument for compulsion is robbed of half its well have been introduced under this head. But where the field for
case of Société Générale de Paris v. Walker (11 App. Cas. 20) might force) has been withdrawn to some extent. Respect for the opinion selection is so wide, it is clearly invidious to complain of the omission which has prevailed with all the Royal Commissions and Parlia. of particular cases. Let us rather say that the cases which are intromentary Committees that have considered the matter has prevented duced are really leading cases, and that where the author has the responsible leaders of the two great parties in the State from confined is notes to discussions of the real point involved he basing their claim for compulsion on this ground. Compulsion frequently gives us a valuable account of the development of the law. appears to them to be defensible and necessary mainly for another Thus, in Austerberry v. Corporation of Oldham, the manner in which reason, to be noticed next-namely, that registration is so remote a
the equitable doctrine of notice has been applied to restrictive benefit that it is not to be expected that any present generation of this could be quoted, as in the quite recent cases of National
covenants, is well worked out. Many other examples of landowners should voluntarily adopt it. But when this is con
Provincial Bank of England v. Games (31 Ch. D. 582), on mortgagee's sidered carefully, it will not appear to present registration in a costs, and Re Corsellis (34 Ch. D. 675), on solicitor-trustees' costs. very attractive light, or to account for the fact that compulsory There is, indeed, as we said before, plenty of useful matter in the registration is at present such a popular cry as it is. We venture book. What we complain of is, that the author has not rightly to think that, while the leaders are moved by this conviction, their apprehended the limits of his subject. If he meant to give us a handy supporters are still actuated by the suspicion of solicitors which we
volume on modern decisions in equity, he should have reduced the have seen to be widely diffused, and perhaps pardonable as an error points involved, and cut off the miscellaneous matter. While, if he
number of his cases, made his notes somewhat fuller on the particular of the ignorant.
To turn to the view now propounded by the great leaders in the Division, he ought to have given up the idea of leading cases matter, it amounts to this : No means yet devised will place an altogether, and attempted a systematic arrangement. absolute title within the reach of an ordinary landowner ; possessory title, therefore, is the only resource. But possessory title confers no benefit upon the existing generation of landowners;
LAND TRANSFER. therefore, it is useless to expect them voluntarily to adopt it; if it OBSERVATIONS ON THE LAND TRANSFER BILL, 1887. By JOHN is to be established at all, it must be by compulsion ; landowners
BRENNAN, Solicitor. Waterlow & Sons (Limited). must submit to a burden they would never willingly undertake, in consideration of the benefiť to posterity. A more unfortunate columns of the SOLICITORS’ JOURNAL. The author is opposed to
This pamphlet is based on letters which have appeared in the statement can hardly be conceived. If it be true, heavy compensa- every item contained in the Land Transfer Bill. He distrusts registion out of the public funds ought to be made to the present tration of title altogether, and sees no necessity for the changes in the generation of landowners for their trouble and inconvenience. No law of real property. The keynote of the whole is sounded in the sign of the intention to make such compensation is apparent. If following passage (at p. 11): "Thanks to the admirable Act of 1881, it be not true, then, again arises the old question, Why should conveyancing has been brought to such a state of extreme simplicity & well-educated class of men need to be compelled to do what is for authorized scale of charges appears to give general satisfaction, as their own benefit, or even in reason) for the benefit of their well to clients as to practitioners. The Settled Land Act of 1882, by children ?
the powers conferred on the tenant for life, effected a very valuable alteration, and got rid of the popular objection that land was too much tied up.” We think, for reasons which we explained last week, that
the discussion of the general objections to registration of title as a REVIEWS.
whole is now almost futile. Both the great parties in the State are MODERN EQUITY,
pledged to it, and all that remains for the profession is to make the LEADING CASES IN MODERN EQUITY. By THOMAS BRETT, LL. B., Brennan's pamphlet some new and valuable suggestions against the
best they can of the position. But there will be found in Mr. B.A., Barrister-at-law. William Clowes & Sons (Limited).
real property clauses of the Bill, based upon the variable character of Let us say at once that Mr. Brett's book is an interesting one. It the value of land. It is suggested that in view of the general decline is interesting because it sets forth concisely a number of decisions of in the value of land, this is not a proper moment to place it on a par recent years which to a large extent replace those of a previous with Consols and railway shares in the order of administration. date, and these are followed by short essays on the points of law On several points connected with the debateable points in the involved. It affords the reader a good deal of information, while it registration system proposed by the Bill, Mr. Brennan is in accord saves him the long arguments and judgments of the cases in White with the general opinion expressed by professional critics who have and Tudor, with the formidable treatises appended to each. gone minutely into the matter. He very reasonably asks for a pro
But we doubt whether Mr. Brett has made the book as useful as he bationary period of six years before the incidence of compulsion; he might have done. What we really want in our law is systematic ex- dwells upon the difference between Consols and real estate ; sees no position, and here we have nothing of the kind. Of course it would advantage in a possessory title, and sees considerable blemishes in the bę wrong to judge any book by a higher standard than that which it absolute title now proposed to be established, as not being truly aims at, and if the object is merely to give a number of detached indefeasible. Consolidation with the Act of 1875 is most properly decisions, the author is quite at liberty to confine himself to this. insisted on, the absence of detail is deplored, and the expense of But he ought, in that case, to refrain from enlarging the book by a registration to the small purchaser is set forth. The author deprequantity of miscellaneous information which can only be really cates the officialism that will ensue on the adoption of the Bill, and useful when properly arranged. Thus the note to Richards v.objects to the Insurance Fund, which he styles robbing Peter to
The Delbridge (p. 8) on Declaration of Trust, which is introduced to shew pay Paul; on this latter point, however, we cannot concur. how a voluntary gift or settlement can be validily made, finishes up regulations as to boundaries he also objects to, in which we cordially with a list of persons who may be trustees and with the sections of agree (see reasons ante, p. 589). the Conveyancing Act on the appointment of trustees. $o in the note to Re Jones (p. 149), which decides that a person may be tenant for life under the Settled Land Act, 1882, though he receives no income from the land, we have the outline of a treatise on the whole of undeed, the book gives us not so much leading decisions in Law Courts on the 17th inst., and although attendance at the so-called
“Messe Rouge” is no longer binding on the judges, there were few modern equity as a great quantity of information on the law relating absentees. Archbishop Richard gave the benediction at the mass in to cases now assigned to the Chancery Division, and that quite the Sainte Chapelle, after which the courts met and the usual historical regardless of whether they illustrate equitable doctrines essays on legal celebrities were delivered. We have already referred to Re Jones, which is a case
A committee has been appointed by the Home Secretary to report upon on the construction of the Settled Land Act. We may also
the accommodation for prisoners awaiting trial at police courts and refer to Reid v. Reid (p. 142) on the Married Women's Property Act, courts of petty seesions ; and also on the question of providing food for 1882. Both of these are highly important and interestiug cases, it is difficult to see their connection with modern equity. The same Hon. Mr. Justice Wills, Sir R. Fowler, M.P., Sir T. Evans, Șir E. F. Du may be said of the practice cases at the end of the book. Moreover, Cane, K.C.B., and Mr. H. J. Bushby. Mr. J. S. Sandars is appointed as Mr. Brett was really dealing with Chancery business, we might I secretary.
cock (16 Ves. 49). Here the assets were in jeopardy, and the plaintiff : CASES BEFORE THE VACATION JUDGE.
were entitled to have the interim injunction continued, and to have a
receiver appointed. For the defendant it was said that there was a bona COMPANY - PETITIJN
fide dispute as to the existence of a partnership, and the court would not, CREDITORS — PRIORITY ADVERTISEMENT LONDON
under these circumstances, appoint a receiver. Reference was made to GAZETTE-NOTICE.
Tucker v. Prior (ante, p. 784), where the law was carefully gone into, In the case of the Alliance Supply Stores (Limited), before Charles, J., on and Charles, J., refused to appoint a receiver; also to Lindley on the 14th inst., the question arose whether the petitioner presenting a Partnership.' 4th ed., vol. 2, p. 1012; Peacock v. Peacock (16 second petition had notice of a petition previously presented, and whether Ves. 49), Chapman v. Beach (1 Jac. & W. 594), Fairburn v. Pearson (2 he had any priority by virtue of his petition being advertised first in the M. & G. 144). The affidavit on which the interim injoaction was granted London Gazette. Two petitions were presented to wind up the company, was misleading and the injunction should be dissolved : Castelli v. Cook one by a creditor to the amount of £5 33. 8d., being also a debenture 17 Hare, 94). If a receiver was appointed it should be the defendant, holder to the amount of £300, the other by a creditor to the amount of whu had managed the business. £160. The petitions were opposed by creditors to the amount of $518, CHARLES, J., said that this was one of those exceptional cases where, but the company consented to a winding.up order being made. For the though the partnership was in dispute, in his opinion a receiver should first petition it was said that the company was insolvent, and ex debito be appointed. It had been proved that the book debts were in danger, justitie should be wound up. This petition was presented on the 21st of and he did not see that the receiver would injure the plaintiff. He should September, the second petition on the 23rd of September. Reference was refuse to appoint the defendant as receiver, but continued the interim made to the Globe Steel Co. (23 W. R. 823, 20 Eq. 337). Creditors opposed iujunction, referring it to chambers to appoint a receiver. --Counsel, the petition, but the company said the business could not go on. In the George Henderson ; Decimus Sturges. Solici rors, Bell, Brodrick, of Gray, cases where the creditors successfully opposed the company also opposed. for Walker f Tweedale, Leeds; Hamlin, Gramner, f Hanlin, for Reference was made to The Uruguay Co. (27 W. R. 571, 11 Ch. D. 372), B. C. Pullen, Leeds. Middlesborough Assembly Rooms Co. (28 W. R 868, 14 Ch. D. 104), Langley Mill Steel and Ironworks Co. (19 W. R. 674, 12 Eq. 26), London and
Ancient Lights-OBSTRUCTION-INJUNCTION -CONTEMPT Suburban Bank (19 W. R. 763, 6 Ch. 641), Great Western Forest of Dean ATTACHMENT — Coal Consumers' Co. (30 W. R. 885, 21 Ch. D. 769), Chapel House Colliery
AFFIDAVIT-Cross-EXAMINATION—R. S. C., 1883, XXXVII., 20. Co. (31 W. R. 356, 13 Eq. 474). The company was in the nature of a In the case of Plake v. Hall, before Charles, J., on the 14th inst., the partnership, and could refuse to go on. As to the petitions, this one was question arose whether counsel on behalf of the defendant had a right in advertised first of the two in the Daily Chronicle, but the second petition the vacation to cross-examine the plaintiff on a motion for leave to issue a was advertised first of the two in the London Gazette. Under the new writ of attachment against the plaintiff. The action was brought by practice it was not a question of advertisement, a second petition now Hermann Plake, cane blind manufacturer, against the defendant to could not be presented without notice of a first petition, because it was the restrain him from execting or permitting to remain on the Whitfield duty of the officer of the court to search and find out whether any previous Burial Ground, Tottenham-court-road, a booth or tent so as to darken, petition had been presented. For the second petitioner it was said that injure, or obstruct the ancient lights of the plaintiff. On the 9th of several bills of exchange remained due and dishonoured. The first September last Kekewich, J., made an order restraining the defendant in petitioner was a small creditor and was also an officer of the company. the terms of the notice of motion. This order was not obeyed, as the The second petition was advertised first in the London Gazette. United plaintiff alleged, and a motion was now brought for leave to issue a writ Ports General Insurance Co. (20 W. R. 356, 13 Eq. 474). Creditors to the of attachment against the defendant. The plaintiff said that the original amount of £518 opposed. On their behalf it was said that the company tent had been removed, but another was put there which darkened the was not insolvent; the assets consisted of 5s. uncalled capital on each £1 plaintiff's windows. The defendant's counsel then claimed as his right to share, stock in trade £500, valued at £400, being origioally bought for cross-examine the plaintiff on his affidavit, under rule 20 of order 37, and £1,800, book debts £2,500, valued at £500. These valuations were incorrect, was allowed to do so by the judge. The plaintiff in his cross-examinaand it had not been made out that the company was insolvent.
tion admitted that the old tent had been removed, but was unshaken Charles, J., made one order on both petitions, and the usual order as to in his evidence that a tent was darkening his rooms. costs, and gave the conduct of the winding up to the petitioner who ad CHARLES, J., said that he was satisfied that an impudent contempt of vertised first in the London Gazette.-Counsel, D. L. Alexander; B. E court had been committed, and made an order that the writ should issue, Lawrence ; Cooper Wyld; and Gatey. Solicitors, K. Powles ; J. Godfrey the order not to be drawn up for two days, the defendant to pay the costs. Hickson ; Thomas Durant ; and Thomas W. Hall.
Subsequently Charles, J., gave leave to the defendant's counsel to move
in chambers the following day on giving notice to the other side. ATTACHMENT ORDER TO PAY-DISOBEDIENCE INABILITY TO Pay On the 15th inst. Charles, J., on the defendant satisfying the court Debtors Act, 1869, s. 4.
that he had removed the tent, and had paid the costs, discharged the In the case of Re Magnay, Tipper v. Tipper before Charles, J., on the order, and on the defendant submitting to a perpetual injunction, the 14th inst., the question arose whether a writ of attachment'should issue action came to an end. --Counsel, Eustace Smith; c. 4. Turner. SOLICITORS, against the defendant for disobedience to an order made by Chitty, J.,
S. B. Abrahams; W. W. King. on the 3rd of August, whereby the defendant George Tipper was ordered to pay £1,304 19s. 9d. into court. In 1881 Mrs. Eloisa Magnay was burnt
COMPANY-DIRECTORS—RemovAL-NOTICE to death in the fire at the Opera House at Nice. The defendant George In the case of Browne v. La Trinidad (Limited) and Others before Charles, Tipper, a first cousin of the deceased, who died intestate, then took out J., on the 19th inst., the question arose as to the sufficiency of notice to a letters of administration and obtained the papers and jewellery of the director of a meeting at which it was decided to remove him from being a intestate and a sum of £1,304 198. 9d. The plaintiff Clara M. Tipper and director. This was a motion on behalf of James Thomas Browne, a a sister, both sisters of the intestate, then brought this action, and Chitty, director of the company, to restrain the company and the directors from J., on the 3rd of August, made the order above referred to, which had not holding a meeting on the 12th of October, 1887, and from hindering the been complied with. For the defendant it was contended that he could plaintiff from acting as director, and attending the meetings of the.com pot be imprisoned since the Debtors Act, 1869. Reference was made to Middleton v. Chichester (19 W. R. 299, 6 Ch. 152). The proceedings had resolved to convene an extraordinary general meeting of the company to
A mecting had been held of the board of directors at which it was been taken four years after the defendant had received the money ; he pass certain resolutions. The first resolution was to remove the plaintiff was not aware that the plaintiffs were alive, he had since done all be from the directorate. The meeting of the board of directors was held at could to get the letters of administration revoked. If the defendant were not sent to prison he could get employment and pay off the money by 3.28.
3.30 in the City, and notice of the meeting was given to the plaintiff at
Article 91 of the Articles of Association gave the company power instalments. CHARLES, J., said that all the considerations urged on behalf of the director until 1588.
to remove a director, but article 6 pr ded that Browpe should remain & defendant were very relevant to his release, but the plaintiffs were en
The first meeting had been held and the first titled to their order, the order not to be 'drawn up for ten days ; the resolutions, was fired for the 28th of October. On behalf of the plaintiff
resolution had been passed, but the second meeting, to confirm the defendant to pay the costs.-Counsel. De Coures, Atkins; Cagney. reference was made to Pulbrook v. Richmond Consolidated Mining Co. (9 ch. SOLICITORS, Hare & Co., for C. A. Wade, Henfield, Sussex; A. T. Benning.
D. 610); Imperial Hydropathie Hotel Co., Blackpool v. IIimpson (23 Ch. D.
1); Harben v. Phillips (23 Ch. D. 14). The company had no power to PARTNERSHIP-DISPUTE-RECEIVER-ASSETS IN DANGER.
remove Browne before 1888, and the second meeting should be restrained.
For the defendants it wos contended that the motion was practically 19th inst, the question arose whether, where the existence of a partner. The court was asked to compel the company against their wili to take the
In the case of Longbottom v. Woodhead, before Charles, J., on the to enforce specific performance of an agreement to employ the plaintiff. ship was disputed, but the assets were in jeopardy, a receiver should be plaintiff back when he was engaged in litigation against them. The court appointed. This was a motion on behalf of Messrs. Longbottom, hot would not do this. Reference was made to Walker v. The London Tran. water engineers, of Leeds, asking that the interim injunction granted on the 21st of September last by Charles, J., might be continued and a
ways Co. (12 Ch. D. 705). Notice to a director was not really necessary; receiver appointed.
if Browne had had notice, the resolution would have been passed all the The action was brought for an account of the same, so he was not damaged. have been entered into between the plaintiffs and the defendant in January, the plaintiff, Mr. Browne, had had no notice whatever of a meeting rat
CHARLES, J., said that their was an initial infirmity in these proceedings, 1876. The plaintiffs also asked for an injunction restraining the defend: Which the directors came to the conclusion that an extraordinary general ant from dealing with the partnership assets or pledging the credit of the meeting of the company should be summoned to remove the plaintiff from partnership, and for a receiver to be appointed. The defendant denied being a director. Giving no opinion as to the rights of the plaintiff in danger. For the plaintiffs it was said that there was ampie evidence from holding a meeting to confirm the first resolution, and to restrain the that there was a partnership; the case was different from Peacock v. Peae defendants from hindering the plaintiff from acting as a director.
Counsel, Marten, Q.O., and D. L. Alexander ; Latham, Q.C., and P. F. or the Board of Trade. So long, however, as the tendency of Parliament Stokes. SOLICITORS, W. F. Tarn; Parker, Barrett, f Parker,
was in the direction of making these matters public they ought to assist ATTACHMENT ORDER - DISOBEDIENCE
the press, and if public opinion was against the system let it be expressed - TAXATION SUMMONS TO VARY TAXING MASTER'S CERTIFICATE,
so as to bring pressure to bear on the proper authorities. The official
receiver said he always tried to act impartially, and do that which he In the case of Re Fassett, Wells v. Dearle, before Charles, J., on the 19th believed was the intention of the Legislature. The registrar said he did inst., the question arose as to the issue of a writ of attachment against a not think anyone could say a word against that view. The official solicitor, pending the hearing of a summons taken out by him to vary the receiver said he would be glad if Mr. Newman would have the point taxing master's certificate. This was a motion for leave to issue a writ of properly tested. Mr. Newman promised to write to the Board of Trade attachment against the defendant Dearle, a solicitor, for disobedience to on the subject an order made on the 6th of May, 1887, whereby the defendant was ordered to pay $308 18s. 2d. into court. This sum consisted of £185 198. 9d. balance found due from the defendant to the estate of
CORONERS' INQUISITIONS. Fassett, after deducting £216 2s. 7d. costs. About £100 of these costs had MR. HERBERT STEPHEN has addressed a letter under this heading to the been disallowed, and the defendant had taken out a summons to vary the certificate of the taxing master. For the plaintiff it was said that after Times, in which he says:- There seems to be a good deal of misunderfourteen days the taxing master's certificate was conclusive, and he was
standing current as to the effect of the verdict of murder returned by the entitled to his order. For the defendant it was said that, pending the
coroner's jury at Michelstown against those of the police whom Mr. summons, the order ought not to be made. Reference was made to R. S.C., Harrington did not compliment. This inquisition, unless it is quashed, 1883, LXV., 39, and Middleton v. Chichester, 19 W. R. 299, 6 Ch. 152.
or the Irish Attorney-General enters a nolle prosequi, will have to be tried At all events, the defendant ought to bave liberty to apply to Stirling, J., jury find a true bill or ignore a bill, or do not have any bill sent up to
before a jury as if it were an indictment, and that whether the grand to reduce the amount. One judge could not alter another's order. CHARLES, J., ordered the writ to issue, to lie in the office for a fortnight,
them. It often happens in England that persons are committed by the defendant to pay the costs.-Counsel, A. Beddall ; A'Beckett Terrell.
coroners to be tried for manslaughter where the magistrates bave refused SOLICITORS, B. Burton ; J. G. Dearle.
to commit them, or where they have not been charged before magistrates. In such cases a course sometimes taken is that the judge directs that a bill should be submitted to the grand jury. If the grand jury find
a true bill they present the bill submitted to them, which is thereafter MANCHESTER COUNTY COURT,
properly described as an indictment, and then the accused may be tried Re WALTER LOWE-12th October.
indifferently on the presentment of the grand jury or on the coroner's ALLEGATIONS OF Causes of FAILURE IN DEBTOR'S STATEMENT.
inquisition. If the grand jury find no true bill it is usual for counsel for
the prosecution - i.e., for the Crown-to ask the leave of the judge to offer During the public examination of this debtor, before Mr. Registrar no evidence on the trial of the inquisition. The prisoner is then arraigned, Lister, Mr. Newman, who appeared for creditors, referred to a statement the jury are sworn, and, no evidence being offered, the judge directs a appended to the official summary of the debtor's affairs, in which the verdict of not guilty, usually explaining to the petit jury that he allows debtor alleged, amongst other things, “that the cause of his failure was this course to be taken in consequence of the decision of the grand jury due to unwarrantable pressure from Woolley and several other creditors that there is not enough evidence to justify them in putting the prisoner withdrawing their credit from him.” To this allegation Mr. Newman on his trial. Sometimes the judge does not trouble the grand jury in the objected, and in examination the debtor said he informed the oficial matter at all, but merely advises that
no evidence should be receiver, or some members of his staff, that one of the causes of his given on the inquisition, but in every case
the accused has to failure was the pressure already described, but that, to the best of his be formally tried and verdict given on
the inquisition. knowledge, the official receiver had not made any inquiries into the truth the present instance a bill may be sent before the grand jury of bis allegation. Mr. Newman contended that it was a libellous state- and ignored, but the accused will still have to be tried, and a petit ment, and was calculated to injure the excellent reputation which Messrs. jury will have to return a verdict. If it is the opinion of the Executive in Woolley possessed. He thought that inquiries ought to be instituted Dublin that presumably innocent men ought not to be tried for their lives before the official receiver published, on debtors' statements, allegations by a jury upon no stronger grounds than the proceedings which have of that kind, because Mr. Dibb occupied an official position, and the made Mr. Coroner Rice and Mr. Harrington, M.P., notorious, the right public were too apt to think that such statements were correct. The
course for them to pursue is to move to have the inquisition quashed. This official receiver said he acted under the directions of the Board of Trade, is, happily, not a sort of application for which our legal bistory furnishes and Mr. Newman could test the point by bringing an action. The many precedents. But it seems to be clear that the High Court has power registrar said he could not say that the official receiver was wrong, but to quash an inquisition and issue a writ ad melius inquirendum on the ground he should be glad if the point was properly tested. The official receiver that the coroner misbehaved himself. It is laid down in Corner's Crown said he should be glad to get rid of the annoyance, and he wished Mr. Practice (p. 203), quoting from Hawkins's Pleas of the Crown (vol 2, c. Newman would write to the Board of Trade on the subject. Mr. New 9, s. 56), that "if it appear that a coroner hath been guilty of any corrupt man said he would do so, and suggested that in the meantime the practice in the taking of an inquisition, it seems that a melius inquirendum official receiver should put at the end of such statements that they were shall be awarded for the taking of a new one by special commissioners, made without any inquiry having been instituted as to their genuineness. who shall not proceed on the view of the body, but on the testimony of He contended that there was not the slightest justification for putting witnesses ; and the coroner shall have nothing to do in the taking of such Mesers. Woolley's name in the statement. The registrar pointed out new inquest, because it appears from his former misbehaviour that he is that the causes of the debtor's failure were only “alleged." Mr. New- not to be trusted. But where his inquisition is quashed for a defect in a man : Suppose the debtor said that his failure was dus to the official point of form only, he may, and ought, to take a new one, in like receiver's mismanagement of some property: Would he insert that? | manner as if he had not taken any before." Among the authorities The official receiver : Certainly. May I say that I adopted that form in which Hawkins gives for this proposition are Bar clay's case, mentioned by consequence of some observations which a judge made ? The question Hale (Pleas of the Crown, I., 415, and II., 60), and the case of R. v. was whether my phraseology was what the debtor actually said, and the Hetheral, reported in 3 Mod. 80, and decided about 1685. In Barclay's judge advised me to quote from what they said in future. The registrar case the subject of the inquest had drowned bimeelf, and the coroner was thought it very desirable that the point should be inquired into. Mr. said to have refused to hear evidence that he was insane, in consequence Newman remarked that Mr. Dibb's name being attached to the debtor's of which the verdict was felo de se (which involved forfeiture of bis goods statement gave it an official tendency. The registrar agreed that the to the Crown). The inquisition was quashed, and a melius inquirendum mame being appended to the statement gave it a degree of importance. granted. In 'R. v. Hetheral the complaint was that the man had been The official receiver said the object of the Bankruptcy Act was not only found insane when he was really felo de se. The application was refused, to find out what the debtor had done, but also whether some of the but the court told the counsel who made it that if he could produce an creditors were not open to criticism. The registrar said it was duubt. affidavit that the jury did not go according to their evidence, or of indirect less a hardship when creditors should not only lose their money, but be proceedings of the coroner, then they would grant it.” The other cases on bandied before the public. There were many men who would rather lose the subject that I have been able to collate all turn on the point of suicide
That was do Weak point of the Bankruptcy Act, but he did not know how they by a coroner is a ground of upplication for a melius inquirendum which the could get over it.
The official receiver said he had no desire to say court will entertain. that which would harm anyone. Mr. Newman said the debtor had admitted that no questions were asked by anyone in the official receiver's office whether his statement was justifiable.
He contended that it was a libellous statement, and he did not see how the official receiver was privileged. The registrar: If you feel this is a public question, I do not think you court by the sudden death of Mr. Archibald Robinson has caused uni
The official receiver: versal regret. Mr. Robinson was, says the Dublin correspondent of the By the Bankruptcy Act the Board of Trade have power to put forward the Times, for many years a solicitor in extensive and lucrative business, an forms, and they prescribe this very form.
The registrar thought there last year was appointed one of the taxing masters in the Supreme Court. was no doubt it was rather hard upon creditors. He did not know The following high tribute to his character, which was paid by the Lord Whether the examinations of debtor sought always to be public, but to open Chancellor and published at his lordship's request, expresses feelings he thought some discretion ought to be allowed to the const as to how far the waost sincere esteem and respect. The public have lost a most able, had said they ought to be so, but he had great misgivings about it, and He was one of my truest and most valued friends. I entertained for him matters should be made public. Some people whose names were brought upright, and painstaking official, one who did his work with all his heart before the court felt the circumstances acutely, and a he had tha:I many loyalily and well. 1 am 11uly and sincerely sorry, rery sorry, for his complaints, but it was not his fault, or the fault of the official receiver, death."