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What then are pleadings? They are, in the first place, the THE PROCEDURE COMMITTEE'S REPORT. statement of the plaintiff's case. And in a case where the transacVI.
tion explains itself, and the details are alone necessary, there is
nothing to call for any further or more formal statement. The In approaching the questions as to the course of procedure in the courts of first instance, the committee give us some view of
details ought to be given, and if the details are given, everything
is given. But it would be a great error to suppose that any large the ends to which they suppose their attention to have been
proportion of actions in the High Court, which can come to the stage directed.
of pleadings are of this simple description; and if it is the trans“In the next place the committee had to consider how far it was possible, action, rather than the relief or claim, that needs to be explained, in those cases in which litigation was continued after the appearance of the defendant, to adopt a procedure (1) for ascertaining the cases in which there
particulars are no longer in place. That they are sometimes is a real controversy between the parties ; (2) for diminishing the cost of
applied for as the cheapest way of remedying your adversary's litigation in cases which are fought out to judgment.
defective pleading is true; and it is also true that matters which Now, as to the second object, we can accept it as a legitimate
occupy the doubtful regions between “ fact” and “evidence” may object, and as the actual object to which, no doubt, the thoughts
be much better given in the way of particulars than in that of of all members of the Committee continually turned. But as
formal allegation. But in neither of these cases—neither where to the first, we can neither discover that it is a reasonable
the pleading ought to have rendered them unnecessary, nor where subject of inquiry, nor what part of the report is directed
they are a reasonable supplement to the pleading — could to this end. It is an end that legal reformers have frequently particulars properly serve their purpose, without those leading set before themselves; it is one that has produced many
lines which are furnished by the pleadings, and within which the attempts to bind the consciences and the tongues of liti
particulars are, as it were, written in. In a word, the short gants, and much perjury. In truth there is a real contro
heading of “Goods sold and delivered” is enough to point out versy whenever either party chooses to raise one; and the true
clearly the nature of every one of a hundred items in a tradesman's object should be to raise it clearly and to try it quickly. A case,
bill; but it is because they are so headed that the particulars are whether on the part of plaintiff or defendant, which is not well
sufficient and instructive. In actions of a different class, let grounded will look the smaller the more it is set in a clear light;
particulars, if necessary, be given; but let a properly pleaded and the hearing is its natural extinction. Those then are the
statement show what is the case to which those items which are true objects to keep in view, and they were both aimed at by the
items of claim are to be referred, and which the opposite party is Judicature Acts and Orders. We must see whether at all, and if
to be called upon to meet. at all how far, they will be more perfectly attained by the pro
What has been said of the pleadings, as the statement of the posals of the committee.
plaintiff's case, is equally true of pleadings considered as the On one point we are glad to find ourselves in harmony with the
statement of the defendant's defence, of his counterclaim, and of committee-namely, as to the advantage of particulars. While
the plaintiff's reply. applications for “further particulars” are often frivolous and
It is impossible, therefore, to assent to the wisdom of the comshould be acceded to with reluctance, the original application is
mittee's proposals as they stand. Yet they may be assented to in of all proceedings in an action one of the most bona fide, the
part. It seems reasonable in any case where the plaintiff may machinery is one of the cheapest and simplest, and its operation
properly content himself with delivering particulars (which for is at once the most instructive and the most binding. There can
many reasons he cannot always indorse on the writ, and therefore be no doubt at all that the refusal of particulars which a litigant
cannot use ord. 21, r. 4), he ought to be at liberty to deliver them party needed has frequently led to the use of the expensive and
under such a general heading as is sufficient on the writ, in place troublesome machinery of interrogatories; stranger still, that when
of making any more formal statement. And where such particulitigants would themselves have preferred the equally effectual
lars are delivered, the defendant should be as much bound to admit and the cheaper method, Judges and Masters hare expressly told
or deny the items as he is to admit or deny the separate allega
: them that they should deliver interrogatories instead, and have
tions of a formal pleading. We venture to think that this point made the application for particulars so perilous that parties have
was overlooked in drawing the pleading rules, and that if this chosen, under this authoritative direction, rather to use interroga
liberty were given it would be greatly to the advantage of all tories to which they had a right than to take the chance of having
parties. But this is a humble proposal ; with none of the drastic to pay the costs of an unsuccessful application for particulars.
character of the recommendations of the committee by which We are satisfied that this assertion would be borne out by every
pleadings are to be practically abolished, and a domestic or
paternal system of settling disputes introduced. signed “ One of Them,” which appeared in our columns last “1. The plaintiff shall on his writ indorse the nature of his claim, in a week, and which we take the liberty of referring to for its valuable manner similar to that in use on indorsed writs at present. The defendant practical observations on several important points.
shall, within, say, ten days after appearance, give notice of any special With a sudden revulsion of feeling the committee are now
defences—such as fraud, the Statute of Limitations, payment, &c.; after which
the plaintiff shall give notice of any special matter by way of reply on which satisfied that particulars are not only useful, but that they are the
he intends to rely. one thing needful, and that pleadings are of so little use that it | “2. Every action shall be assigned to a particular master's list. At any needs the order of a judge (and by judge they evidently do not time after the writ, appearance, and time for notice of defence, a summons mean master) to sanction their use.
(hereinafter called a summons for directions may be taken out by either Before approaching this question we will venture to make a
party before the master to whom the canse is assigned for directions as to any
one or more of the following matters :-Further particulars of writ, further few remarks of a purely practical kind as to the function of
particulars of defence or reply, statement of special case, venne, discovery (in. particulars and their relation to the writ and to pleading. cluding interrogatories), coinmissions, and examinations of witnesses, mode of A writ is intended both to summon the defendant before the trial (including trial op motion for judgment and reference of cause), and any court, and also to tell him why he is summoned, in order that he
other matter or proceeding in the action previous to trial.
“3. No pleadings shall be allowed unless by order of a judge." may early make up his mind whether to defend the action or to settle with his adversary. If the plaintiff were compelled to set The plaintiff thus having indorsed his writ in the usual way, and forth his demand fully in the writ he would be unduly hindered; served it, the defendant is to appear and give notice of any special on the other hand, if he is permitted to do so, an opportunity is defence; but of no other. But it cannot be intended that he is to afforded of challenging the defendant at an early period to show be precluded from other defences. For instance, to take the very whether he has any ground that will bear statement for disputing simplest case, it is, in an action of contract, a question of some the plaintiff's claim.
importance whether the defendant made the contract sued upon ; Next, what are particulars? They are details; primarily | as to which he may say that he made no contract at all, or that details of the claim itself-that is, of the relief asked for. Where the contract was not such as the plaintiff alleges. But the plainthe transaction is of a very ordinary kind these details are all that tiff, if he indorses his writ “as at present," will not have stated is needed. In an action, for instance, on a tradesman's bill the any contract; he will merely, in a general form of words, have things supplied, the dates when supplied, and the amount charged referred to a contract. The defendant may, if he will, ask for are all that require to be known. The transaction explains itself. further particulars of the contract, which, if he is wise, he will probably do. But when he gets the particulars he will not be what the committee intended, whether they had already antici. bound to say whether he admits or denies it, indeed, to do so pated in imagination the “coming race" to which Lord would be an impertinence, and the plaintiff must, therefore, go to Coleridge looks forward, or whether, upon the other hand, trial prepared to prove what, if he had pleaded it, the defendant time had become for them the punctum stans, where all things would very likely have admitted.
are always present, we cannot tell either from the sense But perhaps there is a remedy for this. Under the 7th pro- or the context of the passage. But we will take the other posal
alternative as more suited to the present necessity, and suppose “If it be made to appear to the judge, at or after the trial of any case, that
that the master (one of to-day) refuses to make any order as to one of the parties was, a reasonable time before the trial, required in writing particulars
no | particulars of defence before defence, or particulars of reply before to admit any specific fact, and without reasonable cause refused to do so, the reply, or as to interrogatories before the parties have stated their judge should either disallow to such party or order bim to pay (as the case cases, and know what needs to be asked, or as to commissions may be) the costs incurred in consequence of such refusal ;"
before the witnesses are ill or absent, or as to mode of trial before and, if the making and the terms of a contract are a “specific the issues are ascertained, or
the issues are ascertained, or as to “any other matter of proceedfact” the plaintiff may, in writing, call upon the defendant to admit ing in the action previous to trial” before the occasion arises, and, it. The plaintiff must be careful as to the framing of his notice | in short, deals only with the one matter which is properly before to admit. for the answer to it is simply « ves" or "no": but when him, one of two things must happen. Either this hopeful he has carefully framed it, what will he have done? He will have summons for directions, big with futurity, will suddenly expire, made a pleading ; but the defendant will not have been put to plead / after giving birth to one single ridiculus mus ; or else it must be in answer - fully," but will do that which, in pleadings, the plead- | kept alive by an adjournment, with liberty to either side to bring ing rules forbid. If, however, the defendant should go beyond what it on upon notice. If this is done, the notice will, according to is required, and voluntarily commit himself by a detailed answer, present methods, inform the other side, and the master, what is he will have also made a pleading. Now, as the plaintiff certainly the object sought, and what they are to meet to discuss. In cannot excuse himself for neglecting so proper a precaution for other words, the summons will remain an empty sound, to which, diminishing costs as that of giving notice to admit facts, there will from time to time, each party will give articulate meaning; the be in every action such a notice that is, a pleading. But it is meaning will be contained in the notice; the notice will have easy to see that such a notice will not confine itself to one point. | taken the place of the present summons, freed from the present but will cover all matters which the party giving it thinks at the tax; while the summons will have assumed (so history returns time necessary or material for his case.' In short, it will be at upon its footsteps) exactly the function of the old subpoena by once a pleading and interrogatories, which the other party will, at which a chancery suit was commenced-a mere announcement to his peril as to costs, refuse to answer. There is, however, no reason the party that he is required on peril to appear. The doubt that why the giving of such notices should be more limited than notices
remains is whether, in that case, the summons might not be disto admit documents; and, indeed, as facts are more complex | pensed with altogether, as the parties are already before the court. than documents, it would be more unreasonable to expect the We have, however, assumed, perhaps too readily, that it is inparty to omit none of the requisite items. There will then be | tended that the summons shall be subject to adjournment, or, if probably not one, but several of such notices, or mixed pleadings
adjourned, that any notice shall explain to the other party what is and interrogatories, which the defendant will refuse to answer at sought. For in the opportunity of applying for orders, which the his peril.
committee still reserves to the litigant after the omnibus summons That the same course will be followed with respect to counter- | is extinct, it is provided as follows :-claims, the existence of which the committee appears to have for - “4. The existing practice of requiring a separate summons for each gotten, but which they do not, we imagine, wish to abolish, is separate matter shall be discontinued ; and upon any summons by either party, manifest. In these the defendant is in the position of plaintiff.
it sball be competent for the judge or master to make any order wbich may
seem just at the instance of the other party. But the defendant will not less require the same assistance in his
“5. Any application which might have been made upon the summops for defence, and will certainly give his notices to admit matters which direction sball, if granted upon any subsequent application, be granted at the he has no chance of getting adınitted otherwise. And there seems costs of the party so subsequently applying, unless the master or judge other. no reason why a perpetual cross-fire of notices to admit should not take place during the whole course of the proceedings, since Now that a summons should be moulded is a matter of course, any party will certainly be unwise who omits till a late period, and if this is all that is meant, nothing need have been said. But and trusts to a doubtful construction of the lax phrase "a that it should be thought just or convenient to put a party to disreasonable time before the trial,” his chance of saying expense to cuss a matter of which he has had no warning till the moment himself and throwing it on his adversary. There does not appear when his adversary springs it on him ; that when he comes to ask any reason to anticipate from this ragged muddle of documents, for particulars of writ he should be put to discuss the question of which is to be substituted for pleadings, any results which venue, is so strange a view that we again feel that we are among cannot be better attained by the present system, since pleadings the shadows of the “coming race," when masters will be always do in fact call for admissions ; except indeed this, that, out omniscient, or when at least litigants will never be “sharp.” of this disorderly system, costs will find an easy opportunity of Such is the new scheme of procedure; a poor copy, with inconspringing up to more than their present size and luxuriance. sistent additions, from the county court practice; of which one
But all this is to be checked and restrained by the saving and thing only can be confidently predicted, that, if adopted, it would healing guidance of a master's hand and an omnibus summons for speedily bring about the extinction of the court for which it is directions. Now, so far as the revenue is concerned, suitors will designed. Litigants in search of cheapness would resort to the not complain of being relieved from the necessity of paying more county court; litigants in search of a reasonable procedure, fit for than one stamp. But if it is anticipated by the committee that the the conduct of cases of less simplicity, would find their way to the various matters referred to will or can be disposed of on one appli-Chancery Division, and the Queen's Bench Division would be left, cation, they are surely a little sanguine.
like an exhausted summons for directions, the parent of a single But let us consider the two possible alternatives. First, cause successfully carried through to trial. Could we suspect the let the summons be dealt with all at once. That it must grave committee of such a design, we should find nothing in their be taken out early in the cause is plain; for, amongst other proposal inconsistent with it. But the scheme propounded matters, it deals with particulars of writ. The master, then, with rather seems to us to bear the marks of a simple goodness and not less sagacity and prescience than Mr. Micawber, or than the benignity, than of subtlety, astuteness, or guile. omniscient judges of the future, to whom Lord Coleridge lately! We have not noticed the preliminary disquisition on litigation referred, is required at once to foresee and provide for all the with which this scheme is introduced; but it confirms our imcontingencies up to trial, which may or may not arise in the pression that no depth of design can be imputed to the committee. course of a cause, and to say, for instance, whether the evidence Their few observations leave us with the impression that, in their of a witness who is at present neither sick nor absent, nor with view, litigation is created by the machinery which it uses, that any greater prospect than the master himself of being either, disputes are best adjusted by naked majesty under a forest tree, should be taken on commission. Now, whether this is really that things are simple if you will only call them so in an artless
winning way, and that the best way to make things clear is not to certainly be considered å great objection by wholesale houses. The see or admit that they are difficult.
section as drafted, too, is open to comment. The words "for any amount," in line 2, ought, we think, to be altered to “ for an amount of not less than £20,” if that amount is to remain as the amount for which a creditor can present a bankruptcy petition, or otherwise such amount as
may be provided as sufficient for a petitioning creditor's debt. “The BANKRUPTCY LAW REFORM.
court,” in line 3, will, it is presumed, mean the court having jurisdiction [COMMUNICATED.]
in the bankruptcy; but it might be desirable to give this jurisdiction to
the court in which final judgment has been obtained. The advantage of II.
this would be that no new proceeding would be required to be taken CONTINUING our comments upon the Government Bankruptcy Bill of last until a bankruptcy petition came to be filed, so that costs might be saved session, we now take up clause 5, relating to acts of bankruptcy. Sub- if the debtor paid the debt without any bankruptcy petition. clauses (a.) and (6.) are in precisely the same words as sub-sections 1 and Upon clause 5 generally we would further remark that, as it is pro2 of section 6 of the Act of 1869, and require no comment.
posed to repeal section 6 of the Act of 1869, and substitute this section Sub-clause (e.) is in place of sub-section 3 of the same section, and therefor, a comparison of the two sections will show that, in addition to the only alterations are the introduction of the words " place of business the changes we have already pointed out, the filing by a debtor of a and " in lines 4 and 5, and the omission of the words " or suffered himself declaration of his inability to pay, which is now au act of bankruptcy, to be outlawed ” from the end of that sub-section. Speaking generally, will be abolished. Now, we do not think this advisable, as cases may we think it wise to adbere strictly to the words of the present Act where often occur where it will be desirable that a debtor should be adjudicated no actual change is contemplated, inasmuch as almost every word of the a bankrupt upon a creditor's petition instead of on his own petition, and statement of these acts of bankruptcy has been litigated, and the this act of bankruptcy is a ready and inexpensive way of doing so. As incautious introduction of new words only tends to unsettle everything an instance of this, we have in mind a case of considerable magnitude, which has already been settled at the cost of so much money and litiga. in our own experience, where the junior partner in a firm consisting tion. The effect of the introduction of the new words here proposed of two partners, after involving his firm in heavy liabilities upon bills will be seen from the following quotation, the new words being printed of exchange, absconded (thereby committing an act of bankruptcy), and in italics :-“That the debtor has, with intent to defeat and delay his the other partner, in order that immediate adjudication might be made creditors, . . . . being a trader, departed from his place of business against the firm, filed a declaration of inability to pay. If that course and dwelling-house, or otherwise absented himself.” Now, it might had not been open, the more expensive and cumbersome act of bank. tend to make the law, as it at present stands, more explicit if the word ruptcy of an assignment for benefit of creditors would have had to have “or” were substituted for the word " and ;' for it is well settled that a been resorted to. trader departing from his place of business with intent to defeat or Clause 6 provides for the abolition of proceedings by debtor's summons. delay his creditors comes within the words “ or otherwise absented him. | This, like clause 3, sub-clause 3, appears to be unnecessary, it being self.” But what effect will the words proposed have? Will the old covered by the general repealing clause. We have already discussed the decisions upon the words “or otherwise absented himself” become propriety of abolishing proceedings by debtor's summons. inapplicable? If so, it will certainly not, to our mind, be a desirable Clause 7, relating to proceedings on a creditor's petition, proposes to change. But it is anything but clear that such will be the effect, and if re-enact sections 8 and 9 of the present Act. Formerly adjudication not, then the new words will be simply valueless, whilst they will was made by the court ex parte upon a creditor's petition, but the debtor introduce an element of doubt which will probably lead to considerable was allowed seven days in which to give notice to dispute the adjudica. litigation sooner or later to settle the question. The omission of the tion. But by sections 8 and 9 of the Act of 1869, the whole practice suffering to be outlawed will not be likely to make any difference in the | was changed in this respect, and before adjudication can now be made it practice at the present day, as that act of bankru ptcy, though very is necessary that the petition should be served upon the debtor seven days familiar in sound to the practitioner's ear, is never heard of in actual before the hearing, whilst the form of bankruptcy petition, instead of practice.
being a simple statement that the debtor is indebted to the petitioner in "Sub-clause (d.).-That execution issued against the debtor on any legal
| the requisite sum to constitute a petitioning creditor's debt, and has process has, within fourteen days before the presentation of the petition, been
committed an act of bankruptcy, as was formerly the case, is now a levied by seizure and sale of his goods."
lengthy and complicated document, and requires the consideration for This will work a great change in the law from what it at present is.
the debt, full particulars of any security held, and of the act or acts of
bankruptcy committed, and other particulars to be set out. Theoretically At present seizure and sale under an execution, to be an act of bank.
we admit the present practice may be more correct, but practically we con. ruptsy, must be against the goods of a trader, and for a sum not less than £50. By this it is proposed to abolish the distinction between
sider that the old one was more satisfactory. The risk of incurring the
penalties attaching to filing an unfounded petition for adjudication was traders and non-traders, and also to do away with the limit of £50. We think the proposal an improvement upon the present law, but that it
sufficient to deter creditors from petitioning except upon clear evidence, and
the advantages of being able to obtain immediate possession of the bank. goes too far, and we would suggest a limit of £20. Another change which will be effected by this clanse, as drafted, will be that seizure and sale
rupt's property are obvious. At present great delay often occurs, and if will be an act of bankruptcy available for adjudication for fourteen days
a debtor against whom à petition is filed only contrives to keep out of only, whereas now (if against a trader for not less than £50) it is avail.
the way of being served with the petition, he maỹ cause very great able for six months, although if it take place more than fourteen days
expense, inconvenience, and delay, all of which were avoided under the before a petition for adjudication be presented, the trustee cannot claim
old practice. It is just such changes as this which are the chief cause of the proceeds. Will such a change be advisable ? We are not at all satisfied
the great increase of costs in many cases. that it will, and think that the law should not be altered in this respect
Clause 8 provides for the appointment of a receiver and manager of
the debtor's estate after the presentation of a crediitor's petition and without some good reason, which we fail to perceive. But even if the clause be passed as drafted, there will be nothing to prevent a trustee's
before adjudication. If the former practice, referred to in our last title relating back to such an act of bankruptcy within twelve months
remarks, were reverted to, this would not be necessary, which would be so as to impeach transactions with persons who had notice of such an
another considerable saving of expense. act of bankruptcy; for instance, an execution with knowledge by the
Clause 9 relates to proceedings on a debtor's petition, and is as execution creditors of a prior execution levied by seizure and sale.
follows: "Sub-clause (e.).--That the petitioner has obtained final judgment against
"(1.) A debtor's petition shall allege that the debtor is unable to pay his the debtor for any amount, and has in the prescribed manner served on the
debts, shall show whether he is a trader, and shall be verified by affidavit. debtor in England, or, by leave of the court elsewhere, a bankruptcy notice
“(2.) On the presentation of a debtor's petition, duly verified, the court in the prescribed form requiring him to pay the judgment debt, or to secure
shall forthwith adjudge the debtor a bankrapt." or compound for it to the satisfaction of the petitioner, and that the debtor has failed to comply with the requirements of the notice within fourteen days
A further sub-clause might, we think, be added to provide for a after service thereof, if the service is effected in England, and if the service
trustee's title under a debtor's petition to relate back to prior acts of is effected elsewhere, then witbiu the time limited in that behalf by the order
bankruptcy in the same way as under a creditor's petition. giving leave to effect the service."
Clause 10 takes the place of section 13 of the present Act, and is as
follows: This appears to be in the place of proceedings by debtor's summons, which are proposed to be abolished entirely. With the changes effected " When on a bankruptcy petition there has been made an order for the in the law by the Judicature Acts, which prevent a debtor keeping off his appointment of a receiver or an order of adjudication, all proceedings to creditors by defending an action without having the slightest grounds recover any debt proveable under the petition shall be stayed on notice of of defence, as he formerly could, this change may be very desirable, as the order being given in the prescribed manner, but the court may, on debtors' summonses are often improperly made use of to put the
application by any creditor or person interested, allow any proceedings " screw" on debtors. But it ought not to be overlooked that the change
commenced to be continued on such terms and conditions as it thinks just." proposed by this clause will cause greater delay in forcing into court an The principle of this will, we think, be generally and heartily approved insolvent debtor who may not have committed any act of bankruptcy, of. The present practice of obtaining restraining orders is simply & and who may obstinately refuse to file a petition himself. This will means of enabling the solicitors having the conduct of the proceedings to “make " costs, and is, there is too much reason to fear, often made the not to be interfered with because his mortgagors have chosen to become most of for that purpose. In fact, the onormously large solicitors' biils insolvent and to bave a winding up." But these observations must be of costs for proceedings under liquidation up to the choice of trustee, taken to he
taken to have reference to the case in which they were made, in which a which at times startle the commercial mind, are generally made up of charges for obtaining restraining orders against suing creditors ; and
mortgagee was seeking to continue a foreclosnre action, not to enforce a with the abolition of such orders one great ground of complaint against claim which could be proved for in the winding up
claim which could be proved for in the winding up. It has long been the cost of the present proceedings would, to a very great extent, be at settled that section 163 of the Companies Act, 1862, is to be considered once done away with. In framing any rules, however, under this as applicable whenever the person who distrains on effects of the comsection, care should be taken not to make the "prescribed manner" of
pany distrains as a creditor of the company, and it is difficult to see giving the notice so cumbersome as to be as bad as the present system, Why leave it to rules at all? Why not, instead of the words “in the
on what ground of principle a distress by a mortgagee under an express prescribed manner." say, “by sending such notice under the seal of the power is to be distinguished in this respect from a distress levied by a court by registered post to the address of the suing creditor, or his railway company under a statutory power to recover arrears of toll, to solicitor, as stated upon the record in the action," or something to that which it was held, in In re Traders' North Staffordshire Carrying Comeffect.
pary (23 W. R. 255), that the provisions of sections 87 and 163 were applicable. Mr. Justice Fry, in the recent case, adopted this view, and
held (following In re Silkstone, &c., Company, 29 W. R. 484, L. R. 17 RECENT DECISIONS.
Ch. D. 158) that a distress for interest due before the commencement of
the winding up cannot be distrained for. WHAT IS A "LOCOMOTIVE”?
(Parkyns v. Preist, Q.B.D., 30 W. R. 13.) The developments of modern ingenuity in the construction of locomo USUAL COVENANTS IN A SEPARATION DEED. tive machines have given a good deal of trouble to the courts. Having
(Hart v, Hart, Kay, J., 30 W. R. 8.) held, in Taylor v. Goodwin (27 W. R. 489) that a bicycle is a
This case will be memorable for the spectacle of a number of learned “ carriage” within the Highway Act of Will. 4, and in Williams v. Ellis
conveyancers routed out of their seclusion and arrayed before the court (28 W. R. 41) that a bicycle-rider is not a " .... beast drawing
in the novel capacity of witnesses to testify to the meaning of a provi. any couch, sociable, chariot," &c., within the provisions of a local sion in an agreement for a separation deed that the deed was to contain Turnpike Act, the Queen's Bench Division were, in the present case, the “usual covenants." The question was whether these words authorized called upon to decide whether a steam tricycle was a “locomotive pro
the insertion of a clause providing that the deed should be valid only so pelled by steam " within the Locomotives Act. The steam tricycle was long as the wife continued to lead a chaste life. Mr. Justice Kay held described as being “ like an ordinary tricyele, and capable of propulsion that such a provision should not be inserted. The principal interest of in the ordinary way by the feet of the rider, but with auxiliary steam the case lies, however, in the mode adopted by the learned judge to power to assist the rider, which steam power was, however, sufficiently arrive at a decision on the point of what are usual covenants. In Hamp. powerful to move the vehicle if desired without the foot motion." There shire v. Wickens (26 W. R. 491), where a similar question arose upon an was, however, no smoke, and “the exhanst steam, instead of being blown agreement for a lease “on all usual covenants," the Master of the off into the atmosphere, producing the puffing noise common to locomo- | Rolls said that “usual” means “according to the usual practice tires, is discharged into a coiled pipe in another metal case behind the of mankind;" and in order to ascertain this practice he looked at the rider's seat, and is there condensed and returned by a small pump to the books of precedents. We ventured at the time to express a doubt boiler as hot water, thus at once economizing water and fuel, and pre whether precedent books were always a safe guide as to the actual conventing escape of steam into the atmosphere." There was therefore tents of deeds, for the authors give all the clauses which may be nothing more to frighten horses than in the ordinary tricycle, and as the required, without much regard to the question of what are or are not quite weight was only about two hundred-weight, and the tires of the wheels usual ; and we added that “the general practice can only be ascertained were only one and a-half inches in width, there was no reason to apprehend from practitioners.” We cannot complain of Mr. Justice Kay's having damage to the surface of roads. But the definition of “locomotive" in carried out our suggestion, but we are not without apprehension as to the Act is "a locomotive propelled by steam, or any other than animal the effect on the costs of legal procedure if à cloud of conveyancers power.” This machine, although it might be propelled by the foot, was is to be summoned to assist in the decision of cases turning on the quescapable of propulsion exclusively by steam power, hence it was held to tion of what are usual covenants. be a locomotive within the Act.
DISTRESS BY MORTGAGEES ON GOODS OF COMPANY FOR
INTEREST DUE BEFORE COMMENCEMENT OF WINDING
(In re Brown, Bayley, & Dixon, Limited, Fry, J., 30 W. R. 5.)
A TREATISE ON THE LAW OF BANKRUPTCY ; CONTAINING A FULL EXPOSITION In this case a limited company had executed a mortgage deed to
OF THE PRINCIPLES AND PRACTICE OF THE LAW. FOURTH Edition. By trustees for debenture-holders containing a power of distress for arrears GEORGE YOUNG ROBSON, Esq., Barrister-at-Law. Butterworths. of interest, but no attornment clause. Upon the winding up of the we think Mr. Robson is right in his decision to wait for no more company the trustees moved that they might be at liberty to exercise Bankruptcy Bills before publishing his new edition. Even if Mr. Chamthe power of distress in respect of arrears of interest due before the berlain's consolidating and amending Bills should be passed next session, commencement of the winding up. Their main contention seems to
little alteration will be effected in the principles of the law; and in the have been that. according to the principle laid down in Loud v. meantime there is certainly much need for a re-issue of a work which we
believe is now generally deemed the standard authority on bankruptcy Lloyd & Co. (25 W. R. 872, L. R. 6 Ch. D. 339), the mortgagee
law. There are few subjects on which decisions accumulate so rapidly ought to be allowed to realize his security and enforce all his remedies. as this, and the five years which have elapsed since the last edition have Now, in that case there are observations which undoubtedly, if taken produced some more than usually important judicial interpretations of without regard to the facts of the case, might be thought to bear out the law. The effect of these is concisely stated in the text, the contention in the present case. Thus, Lord Justice James said that
Mr. Robson does not content himself with a bare reproduction of head.
notes, but carefully weighs the decisions before incorporating them with “power was given to the court to interfere with actions by restraining
his text. Nor does he hesitate, when occasion requires, to express an them or not allowing them to proceed, but this power was given opinion. Thus, at p. 440, he states as follows the effect of Ex parte because it was understood that the court would exercise it with a due Walton (L. R. 17 Ch. D. 740):-"In accordance with the principle of regard to the rights of third persons, persons who were not members of the cases on this subject, a construction has been put on the [disclaimer] the company, and who had not to come in and claim to share in the clause in question, which, if not altogether consistent with the language distribution of the company's assets among the creditors, and who were
of it, is at all events recommended by justice and common sense, and is
probably what was really intended by the Legislature-namely, that a not therefore quasi-parties to the winding-up proceedings. The court
disclaimer by a trustee of a lease or other onerous obligation of a bankwould have due regard to the rights of independent persons. A mort- rupt, operates only so far as is necessary to relieve the bankrupt and his gagee is, to my mind, such an independent person, and his rights ought estate and the trustee from liability, and does not otherwise affect the
rights avd liabilities of other parties. And that if a bankrupt lessee has granted an under-lease, a disclaimer of the original lease will not affect
CORRESPONDENCE. the rights of the original lessor to distrain, as against the under-lessee, for rent reserved by the original lease, or to re-enter for a breach of
THE CONVICTIONS FOR BRIBERY. covenant or non-payment of rent. And that if the under-lease is at a rent less than that reserved by the original lease, the under-lessee will
[To the Editor of the Solicitors' Journal.] be entitled to prove in the bankruptcy for the value of the difference Sir,-No doubt the attention of the Council of the Incorporated Law between the two rents." Nor has the point, to wbich we recently drew Society will be drawp to these convictions, so far as they affect the attention in connection with this decision, whether the landlord, after solicitors who have been sentenced to a very severe punishment. disclaimer, could take advantage of section 9 of 8 & 9 Vict. c. 106, as When the council was first consulted on the matter, I think they . giving him the rights of the reversioner on the under-lease, and at the returned a very judicious answer, declining to deal with the question same time maintain against the under-lessee his rights under the which was then sub judice. original lease, escaped Mr. Robson's attention. The chapter on Bills of Now that the sentences have been pronounced, the council will probSale has necessarily been re-written, and contains an excellent summary | ably be invited to re-consider the matter. I have a great detestation of of the decisions on the recent Act. We see no reason to qualify in any
bribery and corruption in any form, but I have as much detestation of way the praise we have before bestowed on this work as by far the most anything approaching injustice. I think that those who supply the convenient to the practitioner of all the treatises on bankruptcy law.
means for bribing are as culpable, if not more blameworthy, than the agent, who, probably without much consideration, and in a moment
of excitement, has been the intermediary. PROBATE.
Probably I am only speaking the sentiments of many of your professional BROWNE'S TREATISE ON THE PRINCIPLES AND PRACTICE OF THE COURT OF readers if I venture to express a hope that the council will not, by any
PROBATE IN CONTENTIOUS AND NON-CONTENTIOUS BUSINESS. Revised, action on their part-or at least, not without the maturest consideration
A MEMBER OF THE INCORPORATED LAW SOCIETY. H. Sweet; Stevens & Sons.
By far the best part of Mr. Browne's book was that which treated of contentious business, and Mr. Powles has altered and modified this so as
DISCLAIMER OF LEASE BY TRUSTEE. to adapt it to the practice under the Judicature Acts. He has also done
[To the Editor of the Solicitors' Journal.] a good deal in the way of correcting and improving, by additions of omitted cases, the portion relating to non-contentious business.
Sir,-To me the decisions in the cases you referred to last week of The
Ex parte Walton and Ex parte Glegg appear to be entirely inconsistent. portion of the work relating to the practice in matters of common form, so
If, as was decided in the former case, the effect of a disclaimer is not far as relates to matters taking place within the walls of the Principal Registry, has been revised by Mr. Oakley, whose long experience in that
that of an absolute surrender of the lease, but only of a qualified
surrender, for the purpose of relieving the bankrupt and his estate and department is a guarantee of accuracy and completeness. But a good deal more remains to be done in subsequent editions. In particular the editor
the trustee from liability, without affecting the rights and liabilities of should remodel the notes. At present some of them are singularly compiled.
other parties, how can it be right or consistent to hold that the effect is Thus, on page 42, to establish the proposition that as a general rule
to give up to the lessor property which belongs to the bankrupt's creditors,
and which, perhaps, constitutes the whole of his assets ? A disclaimer a will disposing of realty but containing an appointment of an executor is entitled to probate, notwithstanding the renunciation of the executor,
either operates as a surrender of the lease, or it does not. If it does,
the decision in Ex parte Walton cannot be right. If it does not, Ex we are first referred to In the Goods of Jordan (16 W. R. 407); then we are told to “see also " three other cases ; then follows "But see” two
parte Glegg, as well as Ex parte Stephens, Re Lavies, and Eoc parte Brooke, other cases, and finally we are informed that in the last of the cases
Re Roberts, must be wrong. Prior to any statutory enactment as to named “the following further cases are cited as to authority of court to
disclaimer, the assignees of a bankrupt were entitled to disclaim an grant probate of wills of realty," a string of four cases being appended.
onerous lease without sacrificing fixtures, or crops, &c., belonging by the This practice of stating the case s cited in argument is not uncommon in
terms of the lease to the bankrupt lessee, and it cannot be reasonably the book, and is greatly to be deprecated. It is the duty of a text-book
supposed that the object of the Legislature was to attach to the right to writer to satisfy himself that every case he cites in his notes has some
disclaim a penalty by way of forfeiture so injurious to creditors. It is to
| be hoped that if a Bankruptcy Act is passed next session, as you seem to direct bearing on the proposition in the text, and he has no right to burden his readers with all the cases which counsel think fit to bring
anticipate (I imagine rather too sanguinely), the rights of creditors will
be properly protected, and the release of the bankrupt and his estate before the court. An appendix covering 377 pages contains the statutes,
provided for at a less costly price and more consistently.
G. rules and orders, and fees of the Principal Registry and district registries',
Lincoln's-inn, December 3. also the provisions relating to probate and administration of the Customs and Inland Revenue Act of June last, and the new fees. We think that
[We understand the principle of Ex parte Walton to be that a dis
claimer operates as a surrender only as between the lessor on the one the forms under the Judicature Acts migbt well have been omitted.
hand, and the bankrupt, his trustee, and his estate on the other hand,
In his judgment in that case, Lord Justice Lush said: “The word 'surHIGHWAYS.
render' must be read in a qualified sense, the object being merely to PRATT's Law or HIGHWAYS, COMPRISING THE HIGHWAY Acts, 1835, 1862,
put the trustee in the same position as if the lease had never become 1864, THE SOUTH WALES HIGHWAY ACTS, AND OTHER STATUTES, &c.,
vested in him.” Would the trustee, if the lease had never become ALSO THE TRAMWAYS Act, 1870. TWELFTH EDITION. By SAMUEL
vested in him, have had any right to the fixtures ?—ED., S.J.] PRENTICE, Q.0. Shaw & Sons. The chief feature in this new edition is of course the Act of 1878,
BANKRUPTCY LAW REFORM. which is printed in full and carefully annotated, and supplied with cross. references by the editor, whose plan does not, however, embrace the
[To the Editor of the Solicitors' Journal.] offering of much independent opinion on moot points. Thus, as to Sir,-- There seems to be a prospect of another Bankruptcy Act next “extraordinary traffic" under section 23 of the Act of 1878, he contents session ; and, that being so, it will not be amiss that your columns should himself with summarizing the decisions in Aveland v. Lucas and Wal- | contain suggestions for amendments of that department of the law. lington v. Hoskins; nor have we found any discussion of the matter in Three points occur to me on which I would elicit the opinion of your the introduction. The Tramways Act, 1870, and the provisions of the reuders as to whether they should or should not be adopted. Public Health Act, 1875, relating to highways, have been added, The first point is this: it is common, on making an advance of money, together with the orders of the Local Government Board relating to for the lender to retain a portion for commission, and to charge interest highways. The work is a very complete collection and digest of all the at an exorbitant rate. It is common also, for a trader supplying goods existing law relating to highways.
to another, to allow a trade discount and a cash discount, if they are paid for in ready money, but to claim the full price if credit is given. The
result of these practices is to swell the amount of the creditor's claim, so that A Western constable, says the Canada Law Journal, held an execution
if the debtor eventually comes to grief, and pays only a small dividend,
the creditor's loss is diminished ; indeed, in many cases, the creditor against a farmer, and when he called for a settlement, the agriculturalist took him out into a big pasture and pointed out a wild steer as the particular
suffers no loss at all, if two or three of his bills are paid, as the gain piece of property that could be levied upon. The constable chased the steer
upon these will cover the loss on a subsequent bill. Now, it may have around for awbile and then sat down, and taking out his book commenced to been quite right to repeal the usury laws, and hold all bargains to be write. “What are you doing there?" asked the farmer. “Charging mileage," good between debtor and creditor; but is it clear that the same principle replied the constable, without looking up. “Do I have it all to pay ? ” gasped should apply when the debtor is not concerned in the matter, and the only the farmer.” “You have." “ Then take this tame heifer here."
question is to adjust the rights of his various creditors against each other?