« EelmineJätka »
one applications and £255 in amount of costs. The total law costs charged to estates by official receivers in the cases closed during 1910, in respect of proceedings taken by them after receiving orders, were £6776, this being partly accounted for by two non-summary cases, in each of which the costs exceeded £1000.
THE number of bankruptcy notices issued in 1910 was seventeen in excess of the number in 1909, and 145 per cent. of the 5738 notices issued formed the act of bankruptcy on which petitions, resulting in receiving orders, were founded. The principal acts of bankruptcy in respect of which receiving orders were made-namely, bankruptcy notice, notice of suspension, assignment for benefit of creditors, and absconding-form respectively 63 8, 12 8, 11.9, and 78 per cent. of the total number of acts of bankruptcy, as compared with 62.5, 127, 123, and 79 per cent. for 1909. No less than 852 applications for discharge were dealt with, being an increase of fifty-eight over the preceding year, and the number of cases in which the discharge was suspended for two years or more forms 98 8 per cent. of the total suspensions, the percentage for 1909 being 98.2.
It is interesting to compare the estates finally wound-up by official receivers and those wound-up by non-official trustees. Of the former, in 97 per cent. no assets were realised; the average realisation was £86 per case; and the percentage of total costs to gross assets realised was 33 46-a decrease of 1.72 per cent. as compared with the percentage in 1909. Of the estates wound-up by non-official trustees, in 4.3 per cent. no assets were realised, the average amount realised per case being £985, and the percentage of total costs to gross assets realised being 25·50—an increase of 80 on the percentage for 1909.
THE following resolution was passed unanimously at a meeting of the council of the Law Society on the 8th inst.:
The council. having had under consideration the recent debate in the House of Lords, records its protest agair at the misconception, to which the Lord Chancellor gave expression, of the attitude of the Law Society towards the Land Transfer Act of 1897, under which compulsory registration has been established in London.
The council, as representing the Law Society, in discharge of its duty to the Profession, and in the true interests, as it is believed, of the public, has assisted in directing attention to the defects of the existing system of compulsory registration, defects which solicitors have the best means of observing and rightly appreciating.
The council has also given publicity to its opinion that any extension of this defective system would be prejudicial to landowners and the public.
This attitude on the part of the society has been fully justified by the report of the Royal Commission, and the counoil expresses its regret that the Lord Chancellor not only refrained from referring to this result of the Royal Commission, but used language calculated to create the erroneous impression (1) that the non-success of the system is attributable to the action of the Profession, and (2) that the commission had approved the system subject to unimportant amendments.
The council has always contended that the proper way of dealing with the question of land transfer is first to amend and simplify the law of real property, so as to remove the difficulties which must beset any system of registration under existing conditions. To such reform the council has already largely contributed, and hopes further to contribute as soon as the state of business in Parliament admits.
NOTEWORTHY DECISIONS OF THE JUDICIAL YEAR. (Continued from page 415.)
The category of cases which group themselves around the wide general heading of the REVENUE is a long one, and year by year it grows in complexity. It naturally subdivides itself into various headings, such as stamps, estate duty, carriage duty, income tax, and so on. Dealing with the last named division, we may remind ourselves of the important House of Lords decision in Smith v. Lion Brewery Company (104 L. T. Rep. 321; (1911) A. C. 150), the chief benefit of which was, however, somewhat lost by the accident of the House being equally divided, and in consequence the decision
of the Court of Appeal had to stand. The decision, however, lays it down that, in estimating yearly profits of brewery companies, they can claim to deduct for income tax purposes in respect of the sums payable for compensation levies as sums wholly laid out or expended for the purposes of their trade. Burghes v. Attorney-General (1911) 2 Ch. 139) was decided by Mr. Justice Warrington, and it turned on Form 8 of the Land Valuation Scheme. The plaintiff was not given his full thirty days' notice, but, inasmuch as the writ was not issued till long after that period, the learned judge would not on that ground hold the plaintiff entitled to succeed. Form 8 was, however, regarded as going beyond the statutory authority conferred on the commissioners. There was no power in them to demand a description or situation of the land, nor were they entitled to require the plaintiff to send the return to anyone but themselves, and the plaintiff was entitled to refuse to comply with the notice, and could incur no penalty for so doing. Deddington Steamship Company v. Inland Revenue Commissioners (104 L. T. Rep. 602; (1911) 1 K. B. 1078) was a case where the company issued a certain £1000 debenture, being a marketable security and one of a series. It purported to charge with the payment of the principal and interest three steamers. The conditions declared that the holders of this debenture and the other debentures of this issue should be entitled pari passu to the benefit of a deed of covenant dated the 22nd Dec. 1909 and three several mortgages of even date therewith. These were three mortgages on the three steamers. Mr. Justice Hamilton held that the debenture created no charge beyond that already in existence under the mortgages and the deed of covenant; that if any interest was transferred it was contingently and not as the substantial object, and the learned judge regarded the debenture as not being a disposition of an interest in the ship within the meaning of clause 2 of the general exemptions from all stamp duties (first schedule, Stamp Act 1891), and he held it liable to duty as a marketable security. The Court of Appeal has now affirmed this (noted ante, p. 292). The same learned judge dealt with Earl of Mount Edgcumbe v. Inland Revenue Commissioners (130 L. T. Jour 460: (1911) 2 K. B. 24). There the question was as to the stamp duty payable on a deed the habendum of which was in substance a lease for a fixed term of ninety-nine years if certain persons should live that long. The Crown urged that it was chargeable with duty under column 2 of the varying rates attached to lease or tack in the Stamp Act 1891, sched. 1, par. (3). The court held that this was wrong, and treated it as a lease for a term which exceeded thirty-five years. Among the estate duty cases there is to be found a valuable decision in Re Hartland; Banks v. Hartland (104 L. T. Rep. 490: (1911) 1 Ch. 459). One principle of great value was laid down by Mr. Justice Swinfen Eady, who held that an English court of first instance should follow the unanimous decision of the Court of Session in Scotland where the point arises on the construction of a statute applicable alike to England and Scotland. There was here a marriage settlement and a sum payable to the trustees by the wife's father's covenant and by an equitable charge on real estate. There was no money consideration for the covenant or charge, and on the covenantor's death estate duty was payable thereon. Following a Scottish decision, Mr. Justice Swinfen Eady held that the Finance Act 1894, s. 14, applied, and the settlement trustees must pay the proper rateable part of the estate duty. The question what constitutes keeping" a carriage was considered in London County Council v. Fairbank (1911) 2 K. B. 32). The respondent kept a number of cabs in reserve for use when required. The appellants sought to make the respondent pay licences for the whole number on the premises. The respondent urged that " 'keeping' "using," and as he only used ninety-four he could not be made to pay for the larger number, which would include reserve cabs. The practice of the Inland Revenue is not to press for licence where private owners are concerned unless or until the carriage is used, but the appellants sought to enforce a stricter rule in their case. It was decided by the Divisional Court that the cab proprietor does not "keep" reserve cabs until in fact he begins to use them. Strutt v. Clift (103 L. T. Rep. 722; (1911) 1 K. B. 1) turned on a dispute whether the carriage was used solely for the conveyance of goods or burden" (Customs and Inland Revenue Act 1888, s. 4 (3). The vehicle in question was a milk van to convey churns from a farm to the station. The farm was in charge of a bailiff, and the latter used the van to bring back some friends from a neighbouring town. The appellants, the owners of the farm, were charged with keeping a van without a licence. It was held that they were liable, having placed the farm in the bailiff's control and delegated to him what Mr. Justice Channell has phrased as "the power to prevent." Cook v. Hobbs (103 L. T. Rep. 566; (1911) 1 K. B. 14) was upon the same section, and there a cart used only for the purpose of carrying commodities to market was held entitled to exemption, even though persons intending to sell the goods are conveyed in it together with them. A cart constructed solely for an exempted purpose does not lose its exemption if it is capable of being used for other purposes. These cases support Lord Alverstone's view that the whole subject of cart taxation causes considerable difficulty, for they are usually near the line, and the taxing Act is so framed as to make it extremely difficult to say which side of it they fall. Apparently in this case the appellant's wife and son were regarded as "burden." Braddell v. Baker (104 L. T. Rep. 673) is a valuable reminder as to the law relating to male servants," and it illustrates the type of employment which falls outside the Revenue Act 1869, s. 5. The stamp duty payable on an increase of nominal share capital was held chargeable on a conversion of stock in Attorney-General v. Caledonian Railway Company (noted ante, p. 269). Quite recently
Brown v. Burt (noted ante, p. 317) was decided, making liable to income tax a foreigner living in a yacht moored in tidal waters.
Cases have arisen out of the statutes relating to the public elementary SCHOOLS which have occasioned some surprise amongst those who are responsible in these matters. Board of Education v. Rice (104 L. T. Rep. 689; (1911) A. C. 179) shows, on the authority of the House of Lords, that a local education authority may differen tiate in certain circumstances between school and school as regards the scale of salaries and the standard of efficiency. This is the well-known Swansea case, in which the Board of Education were so severely reprimanded by the courts for their neglect to answer questions put to them, and for their attempt to hamper one school by paying a lower scale of wages to its teachers than were obtainable in another school. Gillow v. Durham County Council (noted ante, p. 317) was an appeal from a decision of Mr. Justice Hamilton to the effect that the managers of a non-provided school can cause the school to be cleaned and can appoint the caretaker, and the local education authority are bound to pay to the managers the reasonable expenses so incurred. By a majority of the Court of Appeal it is now held that the local education authority have the power to appoint: Holloway v. Crow (104 L. T. Rep. 73; (1911) 1 K. B. 636) may be referred to in all cases where a question arises as to there being a reasonable excuse for non-attendance of children between five and fourteen. A parent was summoned for not causing his daughter to go to school. The parent's excuse was that he required the girl, who was thirteen years of age, to assist in nursing sickness at home. The justices thought that she was beneficially employed, but the Divisional Court disagreed with this, and held that the parent had not discharged the onus of proving beneficial employment, and that the education authority, not the justices, were the judges whether any particular occupation was or was not a beneficial employment. Smith v. Martin (noted ante, p. 79) showed that the local authority was liable in damages in respect of an accident sustained by a scholar who was burnt whilst obeying directions given by the teacher to poke a fire. Shrimpton v. Hertfordshire County Council (104 L. T. Rep. 145; (1911) A. C. 85) decides, on the authority of the House of Lords, that an education authority was liable to a child injured while being carried home in a cart used for the conveyance of children living at a distance, although she was not one of the children entitled to be carried. The attendance officer permitted it, and there was some negligence on the part of the driver. It was held that under these circumstances the education authority was liable, for, having provided a vehicle, they should have seen that it was so managed as to ensure the safety of the children.
SETTLED LAND cases have been numerous this year, and some of the decisions are likely to be of considerable importance in practice. Re Lacon's Settlement; Lacon v. Lacon (noted ante, p. 105; (1911) 2 Ch. 17) was concerned with a legal life tenant in possession with out impeachment of waste. He had recovered damages from a lessee in respect of certain breaches of repairing covenants in a lease granted by a previous life tenant. It was held by the Court of Appeal, reversing Mr. Justice Swinfen Eady, that such sums may be kept by the life tenant, and are not claimable by the trustees as capital moneys. They are, in fact, damages sustained by the life tenant. Re Yorke; Barlow v. Yorke (104 L. T. Rep. 134; (1911) 1 Ch. 370) shows that, in the opinion of Mr. Justice Neville, when a tenant for life commences proceedings to protect the estate without the previous sanction of the court and is unsuccessful, the court will regard the matter as though it were an application for leave to commence proceedings at the cost of the estate. If the proceedings seem speculative the court will not allow the costs of unsuccessful litigation, as a rule, to be paid out of the estate, even though the tenant for life can show that he has acted bona fide and under legal advice. Re Sumner's Settled Estates (103 L. T. Rep. 897; (1911) 1 Ch. 315) deals with an entirely different class of case. A widow took out a summons to settle whether or not she had the powers of a tenant for life in respect of a property settled by a will, under which the testator gave full powers of management to trustees and directed them, inter alia, until the death or remarriage of his wife, to pay her the ultimate rents and profits. Mr. Justice Eve held that she came within sect. 58 (1), clause (ix.), of the Settled Land Act 1882, and had the powers of a tenant for life, being a person entitled to the income of land under a trust for payment thereof to her during her life or until forfeiture of her interest therein on remarriage. This term "forfeiture" is to be so construed as to include cesser or determination on bankruptcy, alienation, remarriage or any other event. Re Coaks; Coaks v. Bayley (103 L. T. Rep. 799; (1911) 1 Ch. 171) was decided by Mr. Justice Warrington, and it raised a point of difficulty in regard to apportionment of rents as between capital and income. The testator gave his property to trustees on trust to sell, with a power to postpone, and to divide into settled shares. Amongst these assets were certain mortgage debts, in regard to which there were arrears of interest. The testator had entered into and received the rents of these properties up to his death, and the trustees continued so to act. It was found that the securities were deficient, and the question of these rents caused disputes between the remaindermen and the tenant for life. Mr. Justice Warrington held that the trustees must apply each instalment of rent as received in satisfying the arrears of interest due at the testator's death, and the balance must be distributed as income up to but not exceeding the interest accrued since the testator's death on the mortgage. The excess would be treated as capital. Re Llewellyn; Llewellyn v. Llewellyn (104 L. T. Rep. 279; (1911) 1 Ch. 451) was another case where an
applicant sought a declaration that he had the powers of a tenant for life. The trustees were to receive the rents and profits until his son, the applicant, became twenty-seven years of age, paying thereout to him a sum per annum. The surplus was to be accumulated on the same uses as the property, and, subject thereto, was to the use of the applicant and his assigns during his life with remainders over. The applicant was over twenty-one, but under twenty-seven. Mr. Justice Joyce held that under sect. 58 (1), clause (vi.), the applicant was in the position of a tenant for life, and therefore had a tenant for life's powers. Indeed, the learned judge was almost prepared to say that, apart from the Act, the applicant was a tenant for life, and if an advowson formed a portion of the property and the benefice became vacant he (the applicant) would be the proper person to present. Re Earl de la Warr's Settled Estates (noted ante, p. 245) may usefully be referred to when considering items of expenditure payable out of capital. In this case trustees were empowered to spend money on a golf course and clubhouse.
The closely allied subject of SETTLEMENTS may now occupy a brief space. Re Leslie's Hassop Estates (104 L. T. Rep. 563; (1911) 1 Ch. 611) shows that the court can appoint the Public Trustee as a sole trustee, although the settlement before the court contains a provision that the trustees should not at any time number less than three. Apparently the donee of the power of appointing trustees could himself appoint the Public Trustee. Semble, the court can, under sect. 25 of the Trustee Act 1893, disregard the settlor's direction as to a minimum number, and can appoint a sole trustee despite any such minimum being mentioned. Re Master's Settlement; Master v. Master (103 L. T. Rep. 899; (1911) 1 Ch. 321) was a case where there was a cesser of the husband's life interest on bankruptcy, and there was a power of appointment to the spouses or the survivor of them. The wife was dead and the husband a bankrupt and beyond the seas, and no power of appointment was known to have been executed. The trustees sought the court's direction as to how they should deal with the income of the settled property during the husband's life and pending any exercise of the power of appointment. Mr. Justice Eve held that the income of the trust fund was distributable in equal shares amongst the three children of the marriage unless and until they were superseded by some exercise of the power of appointment.
(To be continued.)
COMPENSATION FOR DAMAGE BY TOWN PLANNING SCHEMES.
ALTHOUGH the Local Government Board have not up to the present actually confirmed any town planning scheme under the Town Planning Act 1909, local authorities have in several cases made application to the Board for authority to prepare a scheme, and numerous applications are in course of preparation throughout the country. As is, of course, well known, the intention of the Act is that a town planning scheme should schedule a certain area of land and define the manner in which it is to be laid out as a building estate. The Local Government Board are empowered to make regulations prescribing the form and procedure of such schemes, and reference to these regulations (S. R. & O. 1910, No. 436) will show that a scheme will in most, if not all, cases regulate the arrangement of roads, the provision of parks and open spaces, and may also limit the number of houses to the aore and define the character of build. ings to be erected on different portions of the scheduled area. Obviously, therefore, the making of such a scheme is a matter of immense importance to owners of land affected, as it may completely defeat the object a proprietor has had in mind in developing or purchasing his property. It may, for instance, transpire that land purchased for a manufactory!must by the provisions of a planning scheme be devoted to residential purposes; in fact, it is easy to conceive many cases where considerable pecuniary loss may be finflicted.
It seems, however, clear that in cases of this kind no compensation will be payable unless landed proprietors are sufficiently alert to provide for this in some way during preliminary pour parlers, such as by making such a provision a condition of the scheme going through without opposition.
It is true that sect. 58 of the Act provides that anyone whose land is " injuriously affected " by a scheme is to be compensated,
but sect. 59 proceeds to enact that land is not to be considered injuriously affected by reason of any restriction as to the character or number of buildings which may be erected upon it. It follows, therefore, that in a case such as that above instanced no compen. sation can be obtained independently of any arrangement outside the scheme.
Moreover, unless a new interpretation is put upon the expression "injurious affection," it is difficult to see how owners in many other cases can obtain any compensation for loss through depreciation in the pecuniary value of their property owing to conditions imposed by some scheme. For instance, a private owner who is compelled pro bono publico to leave part of his land unbuilt upon for the purpose of an open space (not a public park) should in all equity entitled to obtain compensation, but his case is hardly one of "injurious affection " within the well-known technical meaning of that expression, and, as his land is not taken away from him, he will not be entitled to compensation in the shape of purchase money.
Again, the result of a scheme defining the purposes to which land is to be put will be in many cases to hang it up in the market for a considerable period; in fact, if certain schemes recently propounded are confirmei by the Local Government Board, there is no doubt that much of the land affected will be struck with sterility, so far as building is concerned, for the next twenty years or so. Yet here again it is extremely doubtful whether this will be a case of "injurious affection," and, as sect 58 of the Act requires any claim to be made within three months of the making of a scheme, it is probable that damage of this description is not covered by the section.
Another important provision is contained in sect. 58 by which no owner can obtain compensation in respect of any building erected or work carried out after the local authority have made their preliminary application for authority to prepare a scheme. It follows, therefore, that, once this application has been made, any building subsequently erected on the land proposed to be included in the scheme will be erected at the risk of the owner, and, if it is subsequently found to be inconsistent with the scheme, it may be pulled down by the local authority and no compensation will be payable. As a considerable interval, probably running into some years, must frequently elapse between this preliminary application and the final confirmation of a scheme, it is obvious that proprietors of building estates will in many cases be put to the election either of losing money by arresting building operations or of incurring the serious risk of subsequent demolition.
The only way by which private owners can protect themselves from eavy loss in the directions above indicated is by bargaining with the local authority from the conception of the scheme. It is of great importance to be on the alert for any intimation that a proposal to apply for permission to prepare a scheme is on foot, and, though the statutory procedure regulations do not impose on the promoting authority any obligation to disclose details of their proposals at this stage, full particulars should be pressed for, and, if not forthcoming, the Local Government Board should be urged to refuse the application. The procedure regulations drawn up by the Board are equitable and moderate, and show that they desire local authorities to administer their powers under the Act in a reasonable and conciliatory spirit. Though loath to say a word in favour of bureaucratic government, we are bound to admit that up to the present that department has not shown the same contempt for private rights as was displayed by the promoters of the Act.
THE question of compensation under the Public Health Acts in respect of the destruction of diseased animals was considered recently by the Dublin Victuallers' Association. A resolution had been passed by the Section of Comparative Pathology and Veterinary Hygiene of the Institute of Public Health that where cattle are purchased in open market which do not at the time of purchase present symptoms of any disease, but which are revealed when slaughtered to be unfit for human food, the section considers that legislation should be enacted by virtue of which the purchaser should be compensated by the State. This question was the subject of a recent decision in the Irish courts in the case of Re Smith and Belfast Corporation (1910) 2 Ir. Rep. 285). It was decided that the expressions "damage" and "full compensation" in sect. 274 of the Public Health (Ireland) Act 1878 (which is the same as sect. 308 of the Public Health Act 1875) do not include trade loss caused to the owner of an article intended for the food of man by reason of the publicity of the proceedings brought by the sanitary authority to have an article of food deemed as unsound; and where there is evidence that the amount awarded as compensation under these Acts includes such trade loss, although the award does not so state, the court has jurisdiction, on a motion to set aside the award, to remit it to the arbitrators to state the amount awarded as com. pensation for trade loss.
THE shorthand writer's notes of the judgments of Mr. Justice Gibson and Mr. Justice Dodd on the trial of the election petition for North East Cork and the evidence taken at the trial has just been pub. lished as a Parliamentary Paper (1911, 204). The trial took place on the 20th April and following days. The evidence, which ie of a very voluminous nature, occupies no less than 276 pages of the Blue Book. The judgments throw much light on the question of election expenditure, election experses paid otherwise than by the election agent, and the statutory return to be made to the returning officer. The case rather suggests the view that there cannot be any expenditure other than the expenditure allowable under sect. 17 of the Corrupt and Illegal Practices Act 1884. Mr. Justice Gibson said: "There are many examples in the election reports where a candidate by his conduct has made an existing political association his agents By adopting the comfortable and elusive word organisation,' it was supposed that election expenses proper, such as those for and incident to meetings, an item expressly specified in sched. 1. Part 2, of the Aot, could be kept out of the election account. What, however, the law looks to is reality, and justice cannot be mocked by forms of words. Captain Donelan committed the whole election to the United Irish League; his election meetings were organised by that body, and he cannot dissociate himself from their direct election operations by the term organisation.'
COMMENTS ON CASES.
IT is by no means surprising that some misunderstanding should have arisen as to what was actually intended to be decided in Constantinidi v. Constantinidi and Lance (91 L. T. Rep. 273; (1904) P. 306). As appears from the various reports of that case, no formal judgments were delivered by the learned judges of the Court of Appeal. Whatever material there was for the purpose of framing the head note had to be gathered solely from the interlocutory observations that fell from their Lordships in the course of the arguments. The headnote to our report in the LAW TIMES Reports seems to be strictly in accordance with the substance of those observations. But even so, there was room for considerable doubt concerning the practical effect of the decision of the Court of Appeal. The headnote states that: "Where a decree nisi has been made for the dissolution of a marriage, the petitioner cannot proceed with a petition to vary the settlements until the decree has been made absolute; but after such a petition has been filed there is a lis pendens, and the jurisdiction of the court under sect. 5 of the Matrimonial Causes Act 1859 to direct variation of the settlements is not affe ted by anything done between the time when the decree is made absolute and the hearing of the petition." Turning to the report in the Law Reports, it is seen that, with the exception of the omission of the phrase relating to the filing of the petition constituting a lis pendens, there is no difference of any essentiality. The opening words of the section referred to show that the conclusion embodied in the first portion of the headnote was thereby warranted. The petitioner has to wait until a decree nisi has been made absolute before proceeding with a petition to vary settlements, because of the disstatutory words: "The court after a final decree of solution of marriage may inquire into the existence of settlements. It required, however, the delivery of explanıtory judgments in the recent case of Clarke v. Clarke and Lindsay (105 L. T. Rep. 1) to elucidate thoroughly what was meant to be laid down by the observations-none too intelligible to the most careful reader it must be admitted-which took the place of anything more formal and precise in Constantinidi v. Constantinidi and Lance (ubi sup.). And considering that Mr. Justice Bargrave Deane, who although he was at the Bar when that case was heard and appeared for the appellant there, was himself apparently in ignorance of the true result of those observations-as appears from the order which he made in Clarke v. Clarke and Lindsay (ubi sup.)—small wonder that others should likewise have been misled. Mr. Justice Bargrave Deane seemed to be of opinion that, despite what was expressed in the first portion of the head note above set forth, the registrar might report on a preliminary inquiry undertaken by him in respect of the marriage Bettlement before the decree nisi was made absolute. In other words, the registrar could proceed meanwhile, albeit no order could be made by the court on the husband's petition for variation of the marriage settlement until after the final decres of dissolution of the marriage. But, as the Court of Appeal pointed out, that would be permitting the registrar to do what the court itself was precluded by the section from doing. Mr. Justice Bargrave Deane could enter upon no inquiry until "after a final decree; and consequently his Lordship had no jurisdiction to make the order that he did, namely, that the wife's answer to the petition should be filed by 8 specified date 80 as to give ample time for the registrar to report before the decree was made absolute -80 act, indeed, which might possibly never be performed. The opportunity was then seized for expounding and rendering more perspicuous the observations in Constantinidi v. Constantinidi and Lance (ubi sup), so as to prevent any misconception in the future, in the manner appearing in our report. It will be noticed that the object of allowing the petition, which was already on the file and operated as a lis pendens, to remain there was in order that it might take effect the moment the decree was made absolute. It is, as was said by the Master of the Rolle, "always rather difficult to secure that a petition which is to operate as a lis pendens shall be put on the file immediately the decree is made." That difficulty is surmounted by the practice of filing the petition and then applying, when the proper time arrives, to have it dealt with by the court-i.e., on the final decree being made.
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COUNTY COURTS, EQUITY, AND BANKRUPTCY CASES.-Published quarterly, price 4s., post free. Comprising the Decisions in Law and Equity, administered in the County Courts; the Appeals from the County Courts; the Judgments in Important Cases decided in the County Courts; and all the Cases in Bankruptcy in all the Courts.HORACE Cox, 46 County Courts Chronicle" Office, Windsor House, Bream's-buildings, E.Č.-[ADVT.]
The Temple Church will reopen for Divine service on Sunday, the let prox., at eleven o'clock.
An intermediate session for cases arising in the county of Middlesex will commence on Saturday, the 23rd inst., at the Caxton Hall, Westminster, at ten o'clock.
Mr. Clement Young Sturge, of Rodborough Heights, Gloucester, and of St. Augustine's mansions, Bloomsbury.street, Westminster, barister-at-law, who died on the 23rd July last, aged fifty-one years, left estate of the gross value of £11,237, with net personalty £9847.
News reached Warrington on the 8th inst. of a shooting accident at Denbigh, of which Mr. Frederick G. Taylor, a Warrington solicitor, was the victim. Mr. Taylor was spending a holiday at Denbigh, and joined a shooting party. They rested on an embankment, and on rising again one of them, it is stated, helped himself with his gun. The weapon exploded, and Mr. Taylor received the full charge in his face, death being immediate.
A verdict of "Accidental suffocation was returned at an inquest at Hammersmith on Tuesday on the body of Sharaer Muerwanji Boongaja, thirty four, an Indian barrister, lately residing at a boarding house at 12, Rockley-road, West Kensington. The evidence showed that Boongaja had just finished his education at Cambridge University, where he took his degree with honours in natural science and history. He was called to the Bar last year, and intended to return to India in a few days. He was subject to epileptic fits, and on Sunday morning was found dead in the boarding house, a doctor attributing death to suffocation through falling on the floor while in an epileptic fit.
The passing of the Official Secrets Bill through all its stages in the House of Commons in one day-on the 18th ult.-does not break the record in the speedy progress of Parliamentary Bills. The Bill euspending the Habeas Corpus Act in Ireland in 1866 went through all its stages, not merely in one but in both Houses, on the same day, and received the Royal Assent shortly after midnight. A similar rapidity of legislation was manifested in the case of the Explosives Bill, which was introduced by the Home Secretary, Sir William Harcourt, on the 9th April 1883, after an attempt to injure one of the Government offices in Whitehall. On this occasion, however, while the Bill passed through both the Houses the same evening, the Royal Aseent could not be communicated till the following day.
Unless the jurors of the Seine have adopted a little poetic licence in the presentment which they have made to the Garde des Sceaux, the carrying of revolvers in France is a matter calling for serious attention. The jurors say: Considering the carrying of the revolver has become a habit; that men, women, and young persons carry this weapon as if they were carrying a purse or a bunch of keys; that this custom of carrying a revolver easily able to be concealed has led to a loss of respect for human life; that it is the cause of many murders; that it is in the highest interest of society that it should be no longer easy to purchase a weapon which has made so many victime, the jurors have the honour to ask M. Le Garde des Sceaux, Minister of Justice, to take stringent measures for the regulation of the sale and the carrying of revolvers and to interdict the resale of weapons seized in connection with crimes, délits, &c.
A revision court to consider ownership claims was held on the 11th inst. at Bermondsey Townhall by Mr. Michael Moloney. It was stated that a notice had been sent by the town clerk to Sir Arthur Moseley Channell inquiring whether he was still the freeholder of a house in Marine-street. The revising barrister was told that Mr. Justice Channell had replied as follows: "I am the freeholder, and I venture to point out to you that your inquiry whether I am the freeholder is wholly unauthorised and impertinent, and that it is quite improper to charge the cost of such inquiries on the rates.-A. M. CHANNELL." The revising barrister said that he would allow the cost of the inquiry. Such inquiries were quite justified, and the cost was infinitesimal. The result of such circulars had been to remove hundreds of names from the registers which had no right to be there, thereby saving the cost of printing to the borough councils, besides making the register what it should be--a register of voters, and not a register of bogus
An Irish Lord Chancellorship is not necessarily the climax of a career. Sir Charles Porter, who was appointed from the English Bar, and Sir Constantine Phipps, the founder of the Normanby family, who was likewise appointed from the English Bar to the Irish Lord Chancellorship, the one in the reign of William III. and the other in the reign of Queen Anne, on resignation of the Irish Seal came back to England and resumed their practice in stuff at the English Bar. John Methuen, the founder of the Methuen family, was while Lord Chancellor of Ireland a member of the English House of Commons and a Master in Chancery in England. On retiring from the Irish Chancellore hip, he, as British Ambassador to the King of Portugal, concluded the commercial treaty with that country known as the Methuen Treaty. George Ponsonby, who was promoted in 1806 from the Irish Bar to the Irish Lord Chancellorship in the Ministry of All the Talents, was, the fall of that Administration in 1807, the Leader of Opposition in the House of Commons till his death in 1816. Sir Edward Sugden (Lord St. Leonards) after his first Irish Chancellorship re-entered the House of Commons, and after his second Irish Chancellorship became Lord Chancellor of England. Sir John (Lord) Campbell, when an ex-Lord Chancellor of Ireland, became Chancellor
of the Duchy of Lancaster with a seat in the Cabinet, Lord Chief Justice of England, and finally, in 1859, Lord Chancellor of England, breaking the record by being the only man who had ever for the first time been intrusted with the Great Seal of England at eighty years of age.
A circular from the Home Office has been addressed to the clerks to the justices for the petty sessional divisions and boroughs inviting the attention of courts of summary jurisdiction to the provisions of sect. 5 of the Army (Annual) Act 1911. The section provides that at the end of sub-sect. (3) of sect. 145 of the Army Act 1881, which requires a sum sufficient to enable a soldier to attend the bearing of a summons to be left in the hands of his commanding officer, there shall be inserted the following provision: "Where by an order or decree sent to the Army Council or officer in accordance with sub-sect. (2) of this section the soldier is adjudged to pay as costs incurred in obtaining the order or decree any sum left in the hands of the commanding officer under this sub-section, the Army Council may cause a sum equal to the sum so left to be paid in liquidation of the sum so adjudged to be paid as costs, and the amount so paid by the Army Council shall be a public debt from the soldier against whom the order or decree was made, and, without prejudice to any other method of recovery, may be recovered by deductions from his daily pay, in addition to those mentioned in sub-sect. (2) of this section." With a view to facilitating the arrangement authorised by this provision, the Secretary of State desires to suggest that in every case where a soldier is made liable for costs incurred in obtaining a maintenance or affiliation order, the sum leit in the hands of his commanding officer, as above referred to, should be expressly stated in the order of the court, ie, shown separately from the other costs adjudged to be paid by the order.
A vigorous crusade is being carried on in Italy against smoking. The Avanti does not believe that any enactment will prove effective, and, to justify its scepticism, recalls the various repressive measures that have been adopted against nicotine in the prst. In Persia, the time was, we read, when the smoker, for the first offence, had his nose cut off; in the case of the recidivist-he only had one chance- be suffered the punishment of death. Under Michael Fedorovitch, in 1613, a similar law was made in Russia. Ten years later the Sultan of Turkey, Mourad IV., imitated the rigour of his neighbour the Czar. In 1660 the Senate of Berne treated smokers as malefactors, and burned them at the stake. In other States smokers were publicly whipped. In England, under James I., edicts were issued against the weed, and Parliament improved upon this severity and punished with death Raghliff (? Raleigh), the importer of the weed (sic). The Church was not more tolerant than the secular power. On the 3rd Jan. 1642, Urban VIII., in an interdict to the Archbishop of Seville, made tobacco smoking punishable by excommunication. Innocent XI. also forbade the use of tobacco among the clergy, making the punishment But these a fine of twenty-five ducats, followed by suspension. measures were ineffectual, and we read the Papacy capitulated before tobacco in 1725. On the 10th Jan. in that year Benedict XIII. removed the interdicts pronounced by his predecessors, and permitted the clergy to smoke cigars in public, in order, as he said, lest "the ministers of God, in fleeing from the churches to smoke might be found in retreats less suitable to their dignity."
We have received from the office of the Justice of the Peace, Questions and Answers from the Justice of the Peace 1897-1909. These have been extracted from the practical points columns of those years, and have been revised and modified as rendered The editor necessary by subsequent legislation and decisions.
is Mr. Kenneth M. Macmorran, and the assistant editors The volume is a Messrs. R. E. Willcocks and H. W. Guthrie. storehouse of information on points that have actually arisen connected with local government, public health, Poor Law, poor rates, licensing, and the general duties of magistrates.
The Law relating to Fire Insurance. By A. W. BAKER WELFORD and W. W. OTTER-BARRY. Butterworth and Co.
THE course adopted by the authors of this book has been to confine the text, so far as possible, to a statement of the existing law in their own words, relegating to the notes all professed That this method of treatquotations and discussion of cases. ment has its advantages cannot be doubted, and general principles, apart from particular examples, are thus far more readily available. Messrs. Welford and Otter-Barry have produced a most exhaustive work, and one that should be of great assistance to the Profession.
William Hodge and Co have just published The Merchant Shipping and Relative Acts, classified for ready reference by Mr. John H. Malcolm. The contents are divided into fifty
Messrs. J. M. Dent and Sons Limited have issued a fourth edition of International Law, by Mr. F. E. Smith, K.C., the present issue having been revised and enlarged by Mr. J. Wylie. Naturally, the Hague Conventions of 1907 and the Declaration of London receive a large and proper amount of attention, the chapter on international arbitration also having been more fully developed. The whole work, as it now stands, forms a welcome addition to the literature of this all-important subject.
Mr. Herbert Jacobs has prepared a fifth edition of that excellent book for students, Stevens' Elements of Mercantile Law (Butterworth and Co). All those subjects which intimately concern the mercantile community are concisely and accurately dealt with, all unnecessary detail being eliminated, the whole being contained in the compass of some 600 clearly printed pages.
The new edition-the sixth-of Michael and Will on the Law relating to Gas and Water will be welcomed by the Profession, the editor being Mr. Joshua Scholefield (Butterworth and Co.). Ten years have elapsed since the last edition, and quite 500 decisions have had to be considered and incorporated in the present issue, while the general introduction has not been neglected. Mr. Scholefield has done his work well, this standard work well maintaining its former reputation.
Messrs. Butterworth and Co. and Shaw and Sons have just published a third edition of Housing of the Working Classes Acts 1890-1909 and Town Planning, by Mr. Charles E. Allan, who has been assisted as to the practice by Mr. Francis J. Allan. These statutes have been very carefully annotated, while the statutory rules and forms are also given, the whole forming a clear and practical guide to a difficult and complex subject.
Sir Nathaniel Highmore has prepared a third edition of his Stamp Laws (Stevens and Sons Limited), which may truly be described as a complete treatise on this subject. The legislation of the past eight years which have elapsed since the publication of the second edition and the decisions of the courts during that period have been duly incorporated in the book, and the whole of the text has been carefully revised.
Messrs. Sweet and Maxwell Limited and Stevens and Sons Limited have issued the second volume of Chitty's Statutes, the sixth edition of which is being prepared by Mr. W. H. Aggs. The present volume covers "Canals" to " Copyholds," and amongst the more important subjects dealt with may be mentioned "Church and Clergy "-seventy-eight Acts appearing in this group-" Companies," and "Conveyancing and Law of Property." The cases cited are brought down to June 1911.
De Beer's Analysis of Salmond's Jurisprudence. Stevens and Haynes 13, Bell-yard, Temple Bar. Price 39. 6d. net.
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Gross on Criminal Psychology. William Heinemann, 21, Bedfordstreet, W.C. Price 178. net.
Odgers on Libel and Slander. Fifth Edition. Stevens and Sons, Limited, 119 and 120, Chancery-lane. Price 359. Schuster on the German Commercial Cole. Stevens and Sons, Limited, 119 ard 120, Chancery lane. Price 7s. 6d. Leaming's A Philadelphia Lawyer in the London Courts. G. Bell and Sons Limited, Portugal-street, Kingsway, W.C. Price 88. 6d. net.
BANKRUPTCY LAW AND PRACTICE.
BANKRUPTCY STATISTICS 1910.
REPORT BY THE SOLICITOR TO THE BOARD OF TRADE UPON LEGAL PROCEEDINGS CONDUCTED BY HIM UNDER THE BANKRUPTCY ACTS 1883 AND 1890.
THE legal proceedings under the Bankruptcy Acts 1883 and 1890 during the year 1910 consisted of the following matters :—
1. Appeals to His Majesty's Court of Appeal and to the Divisional Court (in Bankruptcy) (six).
2. Actions and other proceedings to which official receivers were parties (fifteen).
3. Reviews of taxation of bills of costs by County Court registrars (two).
4. Motions in bankruptcy and miscellaneous proceedings (four). 5. Proceedings against defaulting trustees under deeds of arrange
1. Appeals to His Majesty's Court of Appeal and to the Divisional Court (in Bankruptcy).
It is a well-settled principle of the bankruptcy law that a person who has dealings with a debtor with notice that he has committed an act of bankruptcy shall not be permitted to obtain an advantage over the general body of creditors by reason of such dealings if the debtor is subsequently adjudged bankrupt upon a petition presented while the act of bankruptcy remains available. As a consequence of this principle a creditor cannot safely receive payment from bis debtor with notice of an available act of bankruptcy, and is therefore not bound to accept payment, if tendered.
The attention of the Board of Trade was called to a decision of the Divisional Court which they were advised was at variance with this principle and was likely in future to make it very difficult or perhaps almost impossible for small creditors whose combined debts did not greatly exceed the statutory minimum of £50 to obtain a receiving order against their debtor. The parties aggrieved by the decision urged that their interest was too small to justify them in appealing, although they considered that the decision deprived them of what they were advised were their rights; and under the circumstances the board undertook the appeal on their behalf.
The debtor was indebted to a number of creditors for small sums, five of whom combined, for the purpose of making up the statutory minimum debt of £50, to present a bankruptcy petition against him. On the hearing of the petition the debtor denied that he was indebted to two of the petitioners, who claimed to be creditors for £4 39. 6d. and £4 178. respectively, and the registrar directed, in pursuance of sect. 7, sub-sect. 5, of the Aot, that the debtor should enter into a bond with sureties for payment of such debt or debts as should be established against the debtor and stayed proceedings on the petition pending the trial of the question relating to the debts.
Actions were thereupon commenced against the debtor by the petitioners in question, with the result that the debtor admitted the claim of one of them, and the other obtained judgment for a sum smaller than the amount claimed, but sufficient to keep the joint claims of the five petitioners above £50. The debtor paid the amounts due to the two petitioners whose claims he had disputed into court; but they both declined to take the money out of court, and claimed to be entitled to proceed with the petition. The petition was restored to the list for hearing before the registrar, when it was submitted by the debtor that the effect of the payment into court of the amounts due to the two petitioners was that they ceased to be creditors, and as the claims of the remaining creditors amounted to less than £50 that he was entitled to an order dismissing the petition. The registrar was of opinion that the payment into court could not properly be treated as equivalent to payment to the creditore, and accordingly he made a receiving order against the debtor.
The debtor appealed to the Divisional Court against the receiving order, and succeeded in obtaining an order rescinding it. The court took the view that the effect of sect. 7, sub-sect. 5, was to create an exception to the general rule that a creditor cannot retain as against the trustee in the debtor's bankruptoy a payment made to him by his debtor after notice of an available act of bankruptcy committed by the debtor and therefore that he is bound to accept such payment