« EelmineJätka »
DEC. 16, 1871.]
THE LAW TIMES.
BRAMWELL, B., expressed a hope that the sug-induced to accept it under any circumstances, but
The learned counsel on both sides expressed their concurrence in the views enunciated by the court, and trusted that an amicable arrangement would be come to between the parties. We refrain from stating the various points of argument (which were of a very interesting character) until after the court has delivered judgment.
NOTES OF NEW DECISIONS. BURIAL FEES-INCUMBENT'S RIGHT TO NEW PARISH CONTRIBUTION OF INHABITANTS TO THE BURIAL GROUND.-In 1852 an order of council under 59 Geo. 3, c. 134, s. 16, authorised services and offices to be performed in a new church, assigned a district to it out of the parish in which it stood, and granted the incumbent the fees. The district formed part of a borough which separately maintained its own poor. There was no burial ground in the assigned district, and the persons dying in the district continued to be buried as before in the churchyard of the parish. No separate burial board has ever been appointed by, or ground provided for the district. The plaintiff was appointed incumbent of this church in 1854. The burial ground of the defendants for the whole borough was consecrated in 1856, the district of the said new church having The contributed to the rates for providing it. rectory of the parish became vacant and a new rector was appointed in 1864. Held, in an action for the fees paid to defendants for the burials, since the last avoidance of the rectory, of persons who had lived in the plaintiff'sdistrict, that the plaintiff was entitled to recover: (Cronshaw v. Wigan Burial Board, 25 L. T. Rep. N. S. 536. Q. B.)
THE BENCH AND THE BAR.
SELECT BIOGRAPHICAL SKETCHES. From the Note-books of a "LAW REPORTER." [SECOND SERIES.]
HENRY BICKERSTETH-LORD LANGDALE-
In Sept. 1831 Sir John Leach, the then Master
In consequence of this non-acceptance of the offer after several personal calls on him by the Chancellor, on their return to London, but without their meeting, Lord Melbourne, then Prime Minister, wrote him requesting an early some conversation upon interview, to have Upon the circumstances attending the offer. a second communication from the Minister, most earnestly requesting an interview, they met; and we cannot do better than give our readers the copy of the entry made by Bickersteth in his diary, under date of Oct. 2: "I waited on Lord Melbourne at the appointed time. The first thing I said to him was that I had come only to show my respect for him, and wished it to be understood at once that I had declined the office of Solicitor-General, but without any feeling of disrespect for him, or any dislike as to the general policy of his administration; that, on the contrary, I thought that he ought to be supported, and that if I knew a way in which I could properly render him service I should be glad. He expressed his regret at my determination, and rather in manner than in words, showed a wish to know my reasons. I said that I hardly thought myself qualified for the office, and that I had a dislike to it, and probably could not have been
Upon Lord Melbourne intimating that there might have been some misunderstanding as to his (Lord M.'s) concurrence, "I replied... that as to any concurrence, it was, under the circumstances, out of the question, because the Chancellor's letter must have been written at Edinburgh, on the day after Leach's death."
Upon reflection, and having been given to understand by the general effect of his interview with Lord Melbourne, that the latter was anxious to know the exact terms in which the offer of the SolicitorGeneralship had been made to him, Mr. Bickersteth forwarded the original letter of Lord Brougham, and a copy of his answer thereto. Upon this he received on the 5th Oct., a letter from Sir John Campbell, the Attorney-General, dated, however, on the 2nd: "Edinburgh, Oct. 2, 1834. My dear Bickersteth,-From a correspondence I have had with Lord Melbourne and the Chancellor, I presume the office of SolicitorGeneral has been by this time offered to you. I am afraid my opinion may not have much influence with you, but I cannot help expressing my anxious hope that the offer may be accepted. It would be most delightful to me to have such a colleague, and I confess I am not aware of any good reason why your country should now be deprived of your services."
Mr. Bickersteth was strongly urged by many of his intimate friends to take upon himself the responsibility and éclat of the office, but he nevertheless persisted in his refusal, feeling probably that he differed essentially in his notions both of the political and legal reforms then under consideration and contemplated by Lord Brougham, with whom, as Lord Chancellor, he would be constantly
in close and confidential communication.
The post was in consequence offered to several legal men of eminence at the Bar, and finally was accepted by Sir Robert M. Rolfe (afterwards Lord Cranworth), who had been strongly recommended by Bickersteth to Lord Melbourne. The cabinet of the latter was, however, dissolved during the following month of November, and Lord Lyndhurst, then Chief Baron of the Exchequer, was again appointed Lord Chancellor.
The reputation of Mr. Bickersteth as a sincere and energetic reformer had now universally spread itself, and on the 10th Dec. following, an influential deputation of the electors of Marylebone waited upon him with a request that he would allow himself to be put in nomination at the forthcoming election to be the representative in Parliament of that important borough. This flattering offer he also declined, as he concluded from the tenor of the conversation which then took place, that he would be expected to give certain pledges as to his general course of political conduct in the House of Commons, and as to his votes upon certain subjects which it was anticipated would be forthwith brought under discussion in the House.
The following passage from one of his communications written at this time puts in a striking light the great independence of character of the man, and his settled resolve upon certain topics then uppermost in the public mind:
"I conceive that no considerate man-no one
preserve his honourable character, must break
It is singular, but it is a fact unquestionable,
In Aug. 1835 Bickersteth married Lady Jane Harvey, the only daughter of Lord and Lady Oxford, whom he had known from infancy. This union, although not blessed with any children, was a source of great happiness and comfort to both.
The impatience of the public at the continued delays in the Court of Chancery, which showed itself in the daily journals, pamphlets, and remonstrances, now approached a crisis, and necessitated the appointment of some one as Lord Chancellor, and the Prime Minister greatly desired steth. It was found, however, to be impossible to fill up this important office by proposing Bickerto pass by the Master of the Rolls (Pepys), who, it may be mentioned en passant, was no favourite with Lord Melbourne. He, however, considered it expedient, under the circumstances, to offer him the seals, which were, after some hesitation, accepted by him, he at the same time receiving a peerage with the title of Baron Cottenham.
By the etiquette of the Profession the AttorneyGeneral, Sir John Campbell, might have expected to be appointed to the vacated post of Master of the Rolls, but, feeling that this might be distasteful to the public, as well as to the Profession, from his not being an equity lawyer, or as having practised but rarely in the equity courts, Lord Melbourne determined to offer that place to Mr. Bickersteth. In a most flattering letter the announcement of this intention was made to him.
The conclusion of this offer, and the circumstances attending his final acceptance of it, highly conduce to a due appreciation of the strength of mind and independent spirit of Lord Langdale. We, therefore, give them a little in detail.
In the letter containing the offer was the following passage: "Considering the general state of parties, and considering also the great pending legal questions, it is evident that we shall require your aid and support in Parliament, but whether in the House of Lords or Commons may be left for further consideration. I only wish to be informed whether you would be unwilling to accept a peerage if it should be thought expedient for the present arrangement, or on general grounds," &c.
The answer was as follows: "I have the honour to acknowledge the receipt of your Lordship's letter of the 25th inst., which reached me at a late hour last night. If I were to act on the impulse of the moment, I should at once gratefully express my willingness to undertake everything which your Lordship suggests, for reasons, and under circumstances so flattering to me, and so gratifying to my feelings; but I have not been accustomed to consider legal reforms in reference to possession of office by myself, and I hesitate from a distrust which I feel of my ability to perform the duties which would be required of me in a manner which I think adequate to their importance. May I hope that I am not taking too great a liberty in asking the indulgence of a little time for reflection. I shall be in town on Saturday night, and shall be anxious to wait on your Lordship when you may appoint," &c. In reply to this Lord Melbourne made an appointment to receive him, and the result of the interview is thus given by Mr. Bickersteth in his diary: "He told me that Pepys had agreed to take the office of Chancellor, although he wished to postpone the time. I then said that upon consideration I had so far come to a resolution that if the Mastership of the Rolls were offered to me alone, I should venture to accept it, but that I could not feel disposed to take a seat in either House; that I was on principle opposed to the union of judicial and political offices in the same person. I thought it wrong, and fit to be altered in the case of the Chancellor. To make the union in the case of Master of the Rolls, was, for the present at least, to increase the evil instead of removing it. I thought it quite clear that the Master of the Rolls ought not to be a member of the House of Commons-if active, he would act inconsistently with his judicial character; if inactive, he might neglect the interest both of his constituents and others. There was much less objection on public grounds to the House of Lords; there was less to do-less squabble and heat-but still the judicial office was sufficient to occupy the whole of any man's time, and there would be an union, though less close, of the judicial and political offices, and on private grounds I had strong objections. I had no adequate fortune to warrant me in taking an hereditary peerage. He then said that the King was very much pleased with the arrangements, and willing to make me a peer directly. At the close he said, 'Your view is to consent to take the judicial office by itself, but not connected with a seat in either House ?' I said, 'Exactly so,' Lord M. replied, 'I must take a little time to consider of it and let you know.' I then said, "Supposing that this subject may now be closed, I beg to return my thanks.' I then withdrew, thinking the whole matter at an end."
Of course it was advisable that Bickersteth should consult with his more intimate friends upon the result of this interview, and his intention to refuse the peerage offered to him.
They were strongly averse to this reservation, particularly the late Mr. Sutton Sharpe, who offered such arguments to persuade him to accept the peerage, as altered his determination in that respect. The negotiation was thereupon reopened with Lord Melbourne, who requested a second interview to discuss the subject.
The entry in the diary is as follows: "I waited upon Lord Melbourne. He began by asking whether my views had in any respect altered. I said they had; that on consideration, although my personal objections to the peerage had in no respect diminished, yet my difficulties might perhaps give way if I could be persuaded that by means of it I should be able to render any useful assistance towards law reform, and if I could be entirely free in politics. . . . This is a subject on which there should be no ambiguity. There is nothing more hateful or mischievous than a political judge, influenced by party feelings. In my opinion, he should be wholly free from any party ties, and if I, being a judge, am also to be in Parliament, it can only be on the clearest understanding that I am to be free from any party ties ;-to put it strongly, as free under your administration as if I had received my judicial appointment from your opponents. To this after a silence of a few minutes, Lord Melbourne said, with gravity and dignity, 'I understand you, and
He soon afterwards said that the subject must be considered further, from which I understood it was necessary to consult his colleagues. Late in the evening of the same day I received the follow. ing note from Lord Melbourne: Downing-street, Jan. 11, 1836. My dear Sir,-We should lament Campbell's resignation and consider it a great loss, but we cannot now draw back. We are therefore determined, at all hazards, to proceed with our arrangement, and if you are ready to undertake the Rolls, we are ready to give it, under the understanding you so clearly expressed to me this morning. We can hardly dispense with your assistance in the House of Lords, but you must not consider yourself bound to give support politically," &c.
The following extract from the answer is characteristic: "I beg leave to thank you most sincerely for the early information which you have been kind enough to give me. If the peerage can be dispensed with, or even postponed, I shall feel great additional gratitude but if required, and notwithstanding the reluctance and misgiving which I cannot satisfactorily overcome, I consent to accept it on the terms of perfect political independence which your Lordship so liberally (and if I may presume to say so), so properly sanctions and approves."
fully appreciate your motives, and I think you | the plaintiff as the inner wall of the back are perfectly right.' portion of his house. This state of things as now existing arose thus: By a deed dated the 2nd Sept. 1859 the plaintiff purchased and had duly conveyed to him the fee simple of the house, of which he is still the owner. By a deed dated the 13th May 1863 the plaintiff purchased and had conveyed to him the fee simple of the house, of which the defemdant is now the owner. The plaintiff's house, when he bought it, was a single house, one room deep. The defendant's house, when the plaintiff bought it, was and still is a double house two rooms deep, and as the properties then stood the main wall of the defendant's house extended at the back beyond the line of the main wall of the plaintiff's house by the depth of the second room. During the period of the plaintiff's ownership of both properties, he converted his single house into a double one by building rooms at the back so as to range in a line with the defendant's house, and for that purpose used the main wall of the defendant's house as the inner wall on that side of the new building, and timbers of the roof of the new building were laid into the main wall of the defendant's house; and thus, during the plaintiff's ownership of the two properties, this part of the defendant's main wall was permanently appro priated to the use of the house now owned by the plaintiff as became necessary for its continuous enjoyment as if it were a partition wall. In the two houses, while the properties were thus held and enjoyed, the plaintiff, by deed dated the 13th June 1867, sold and conveyed to the defendant the house now owned by him by the same description by which it had been conveyed to the plaintiff by the deed of 13th May, 1863, accompanied by a plan indorsed, which showed that the site of the whole of the main wall in question was conveyed to the defendant. This deed did not contain any reservation in favour of the plaintiff of any right to the user of the waste for any purpose. A few months ago, the defendant having occasion to make some alterations in the cellar of his house, pulled down a part of the bottom of this wall; and the effect of this was to cause part of the wall to give way on the ground and upper floors of the newly added part of the plaintiff's house, and some damage was the necessary consequence. This has been partly repaired by the defendant, but not to the extent required by the plaintiff, and the question now arises whether the plaintiff, having conveyed the house and the main wall to the defendant without having reserved any right to himself, can insist as against the defendant upon the right to the continued user and enjoyment of the wall for the purposes to which he has devoted it during his ownership of both properties. It was alleged by the defendant, and I assume truly as a matter of fact, that until the wall fell away in consequence of his operations in his cellar he did not know that the wall had been made use of by the plaintiff for the purpose of the additions he made to his original house. But it was apparent from the mode in which, by the masonry, the added portion had been built, that the existing wall had been made use of as the inner wall of those portions from the ground to the roof, and the nature and extent of the case could have been ascertained upon a careful inspection by a person conversant with such matters. The rule as to what is an apparent easement is thus stated in Gale on Easements (4 edit. p. 89), and was approved by the Court of Exchequer in Pyer v. Carter (1 H. & N. 922). The question of right as thus raised between these parties is one which has been the subject
Sir John Campbell gave way. The appointment of Bickersteth as Master of the Rolls was made; he took the title of Baron Langdale of Langdale, in the county of Westmoreland. The congratulations of friends and admirers were voluminous. In answer to one from his old master Jockey Bell, who only survived for a few weeks afterwards, he says, "Be assured that no congratulations on this occasion can be more gratifying to me than yours. It was you who first directed me to the sources of professional knowledge, you solved the difficulties which occurred to me in my early practice, you whose prevailing advice overcame the reluctance I felt to step within the Bar; you therefore are intimately associated with every part of my progress, and I will endeavour not to disappoint your expectations. Certainly I can never forget the kindness which I have always received from you. In the midst, however, of the congratulations which I receive from you and other friends, I confess that for the present the feeling of responsibility outweighs every other consideration in my own mind, and that I cannot yet feel so well satisfied as I could wish to be, that I have not undertaken a task too great for my ability." Lord Langdale took his seat in the Rolls Court on the 19th Jan. 1836, and presided over his court for the space of fifteen years.
We purpose giving a few remarks on his character as an advocate and judge, with a few anec. dotes with reference to it.
(To be continued.)
(Before W. T. S. DANIEL, Q.C., Judge.)
MILNER v. HILL.
Continuous and apparent easements.-Effect of permanent alteration by owner during possession and ownership of properties afterwards separated. Where the owner of two tenements makes permanent alterations which operate as a burden upon one for the benefit of the other, upon sub-in sequent alteration, each property passes as it is burdened or benefited, and no express grant or reservation is requisite in either case. Watts v. Kelson (L. Rep. 6 Ch. App. 166), treated as settling the law, and affirming the rule as laid down in Gale on Easements (4th edit., p. 89). Berry for plaintiff.
Tarry for defendant.
His HONOUR. This action is brought to recover the sum of 21. for damages done by the defendant to a house in the plaintiff's occupation, and of which he was owner, by partially pulling down and injuring a mesne or partition wall. Upon opening the plaintiff's case on 7th inst. it appeared that the real question between the parties involved one of right to the wall alleged to be damaged. And it being suggested on behalf of both parties that a view would assist in the consideration of the matter and save expense in the production of evidence, I consented to have a view, and the case stood over for that purpose; and accordingly, on the 14th Nov., being attended by the solicitors of the respective parties and by the parties themselves, I viewed the properties, and had the particular subject-matter of the present complaint pointed out to me. The two houses now owned and occupied by the plaintiff and defendant respectively are contiguous to each other, and the wall, which is the subject of the present dispute, is the main wall of he defendant's house, but is also used by
recent times of conflicting judicial opinions-a conflict which, however, I conceive has been completely set at rest by the decision of the present Lords Justices in January of this year, in the case of Watts v. Kilson (L. Rep. 6 Ch. App. 166.) In that case all the authorities were fully cited, and the authority of the old case of Nicholas v. Chamberlain (Cro. Jac. 121), recognised and acted upon. The cases in which conflicting opinions have been expressed are carefully collated and stated in the edition of Gale before referred to, in the notes from p. 91 to p. 95. The question which has perplexed judges seems to have been whether, where the owner of the two tenements sells and conveys the servient tenement without an express reservation of the servitude, retaining himself the domi nant tenement, he would not, when claiming the benefit of the servitude, be derogating from his own grant. But the law as now established seems to be that where the owner of two tenements during his ownership executes apparent works of a permanent character upon either or both of his tenements, whereby a servitude is fixed upon one for the benefit of the other, and he afterwards sells both or either of the tenements without express mention of the burden or benefit of the servitude, the property passes to the buyer as it is, with the character which the owner, in the exercise of his right of property, has impressed upon it. If the conveyance is of the property upon which the servitude has been fixed it passes with the burden; if of the property for
the benefit of which the burden has been imposed, that money paid to prevent a distress could not be it with the benefit, and it makes no differ- set off against a claim in another action, and Lord ence whether the owner convey the tenements to Kenyon based his judgment on the broad grounds different purchasers, nor what is the order in date that such payment would not be deemed a payof the conveyances; whether the conveyance of ment by compulsion, as the defendant might by a the servient tenement precede the dominant, or replevin have defended himself against a distress, the conveyance of the dominant tenement pre- and therefore after a payment so made, he should cede the servient, nor whether if the owner not be allowed to dispute its legality. He might, retain one the one retained be the dominant or however, have had replevin, as appeared by the servient tenement. Nor does the rule depend second resolution of the court in the Six Carpenupon the particular character of the servitude, ters' case, 8 Coke's Rep., p. 147. After quoting provided only it be continuous and apparent. As other cases in support of this view, his Honour I read and understand the authorities which I am said: In the case of Glynn v. Thomas (25 L. J. at present bound to take for my guide, they affirm | Ex. 125), the facts were identical with the one under the law as expressed by Mr. Gale in the following present consideration, and in delivering the judg. luminous passage of his original text (p. 89): "Itment of the court in error, Judge Coleridge says, is true that strictly speaking a man cannot sub- "The plaintiff should have made a tender to the ject one part of his property to an easement, for defendant of the amount admitted to be due, and no man can have an easement in his own property upon his refusal to accept that sum, the plaintiff's but he obtains the same object by the exercise of course was to procure the immediate possession of another right, the general right of property, but the goods by replevin, and put the disputed queshe has not the less thereby permanently altered tion in that course of settlement which the law the quality of the two parts of his heritage; and if prescribes for it." With regard to the case cited after the annexation of peculiar qualities he alien by the advocate for the plaintiff, it has no one fact one part of his heritage, it seems but reasonable in common with the present one. There the deif the alterations thus made are palpable and fendant was a stranger who wrongfully seized the manifest, and in their nature permanent changes goods of the plaintiff, who was not his tenant, and in the disposition of the property, so that one part having no title of colour whatever. In that case thereby become dependent upon another, that a unquestionably trespass would have lain. My purchaser should take the land, burthened or judgment on the law would in any case have been benefited, as the case may be, by the qualities for the defendant, and it is so on the facts also, as which the previous owner had undoubtedly the it is by no means proved to my satisfaction that right to attach to it." And Mr. Gale adds, "This the previous quarter's rent had been paid as reasoning applies to those easements only which alleged. are attended by some alteration which is in its nature obvious and permanent; or, in technical language, to those easements only which are apparent and continuous; understanding by apparent, not only those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject." Applying the law thus laid down, and, as I conceive, fully established by the authorities, to the case between these parties, I am of opinion that by the conveyance of the 13th June 1867, the house bought by the defendant was conveyed to him as it was at the time, that is with the wall in question, subject to such servitude as the plaintiff had imposed upon it when, as owner of both houses, he made the additions he required, using it as the wall for supporting the roof timbers, and as the inner wall of the added rooms. And, consequently, though the defendant is owner of the wall, he is not at liberty to that system. In all cases, especially those above serving as collector in an outlying township.
responsible persons being appointed as collectors, whoever was appointed found himself_associated with a person of the name of Barton; and the practice was for the last collector to nominate his successor, instead of the assessors nominating the collectors. Instead of two responsible names being given in, only one responsible name was given, and the gentleman found himself associated with a person of the name of Barton, who was a professional collector of taxes, and who, in addition to getting 1. in the pound from the district for the collection of the taxes, had always been paid 15l. by his associate. Mr. Parr felt it to be an injustice to be associated with a person who was not a responsible man, and also to have to pay 157., and to be responsible for the collection of the taxes. It might seem extraordinary that such a set of Acts could exist in this country, and also that such a law should be allowed to remain on the statute book, because it was practically a fine against gentlemen living in outlying districts. Mr. Parr, having business in London, could not attend before the commissioners on the 26th Jan., and on the following day he received a letter from them requesting him to appear on the following Tuesday to show cause why the penalty of 201. should not be imposed upon him for neglecting to attend. At that time Mr. Parr had a residence in Liverpool as well as at Waterloo, his residence in Liverpool being separate from his place of business; and believing that he was exempt from serving as collector for Great Crosby on account of his having a residence in Liverpool, he went to Mr. Gill, his solicitor, and instructed him to notify the commissioners to that effect, and to claim exemption. This was done, and several letters passed between Mr. Waring, the clerk, to the commissioners, and Mr. Gill, the plaintiff's attorney, with respect to the matter. The commissioners held that Mr. Parr was entitled to DURING the hearing of the case it appeared that serve, and ultimately the Board of Inland Revenue officers of the court to annex to the summons to be that they had no power to interfere with the approper particulars had not been furnished to the was appealed to on the subject, but they decided Honour said: "I have had very great reason to of persons who were returned as fit and proper, served on the defendant. In reference to this his pointment of collectors by district commissioners complain, so have other judges, that satisfactory and that his lodgings at Liverpool did not affect particulars are not given to the officers of the his liability to serve for the township of Great defendant is taken by surprise. I do not Samuel said the Board of Inland Revenue had court with regard to the sums sued for. The Crosby, where his residence was situated. Mr. impute anything-it is a lax method; and un- seemed to think that it was his place of business fortunately the officers of the court have no in Liverpool, as, under the Act, any person having power to compel other particulars to be given a residence in a borough was clearly exempt from
use it in such a way as to injure the plaintiff in his enjoyment for those purposes. This he has done, and judgment will, therefore, be entered for the plaintiff, with 21. damages and costs. And I certify that the title has come in question, and this certificate will give the defendant the right of appeal if he desires to exercise it.
THE plaintiff is a widow residing at 12, Charlotteterrace, Morice-town, and the action was brought to recover from the defendant, who is a pensioner, living at 26, Harvey-street, Torpoint, the sum of 4., for that the defendant in the month of July 1871, wrongfully seized, detained, and converted certain goods and effects the property of the plaintiff, then being on the premises of the plaintiff in Harvey-street. The case was tried before his Honour in August last, when judgment was reserved.
Rundle then appeared for the plaintiff.
The case for the plaintiff was that the defendant when "no rent was due" levied on the plaintiff's goods, and to avoid their being removed and sold she paid the money. The defence was that the quarter's rent was due, and in addition to this Mr. Edmonds contended that no action would lie, because it was the duty of the plaintiff to replevy the goods, and that this was the only form in which the right to distrain could be tried. His HONOUR now gave his decision. He said it was not from any doubt as to what his judgment should be, either with respect to the law or the facts, that he reserved his judgment, but because a case was urged upon him as an autho rity, of which the marginal note initiated so much against what he understood to be law-at least, as applicable to the subject before him-that he desired to read the case through. It was admitted by the advocate for the plaintiff that an action for money had and received would not lie, and, indeed, there were many authorities to that effect. In Lindon v. Hooper (Cowper's Reports, 414), it was held that such action would not lie to recover back the money paid even where the distress was Wrongful; and Gulliver v. Cosens (1 C. B. 788), was to the same effect. Knibbs v. Hall decided
HUDDERSFIELD COUNTY COURT.
DENHAM V. ARMITAGE.
than those delivered to them. I intend to alter
40s., I shall insist upon the plaintiff furnishing the
are not liable. At common law no interest is re-
ORMSKIRK COUNTY COURT.
(Before H. B. GILMOUR, Esq., Judge.)
Samuell, barrister, for the plaintiff.
His HONOUR.-Has he a house in Liverpool? lodgings in Bedford-street, Liverpool, where he Russell said the fact was that the plaintiff had occasionally slept; but he had a house in Waterloo, where he entertained his friends, and where he habitually slept.
Samuell said he contended that the plaintiff had a residence in Liverpool. After further correspondence on the subject, on the 18th May the commissioners gave the plaintiff notice that he should fine him 201. He did not appear, as he was to appear before them on the 25th, and they had business in London; but Mr. Dunville, managing clerk for Mr. Gill, attended. The result was that the plaintiff was fined 201. for wilfully refusing or neglecting to serve the office of collector. Mr. Samuell contended that the plaintiff had not wilfully refused or neglected to serve the office, but had simply claimed his exemption from performing the duties of collector; and further, that the commissioners had fined him without going into the proof as they ought to have done, they having refused to hear Mr. Dunville. Mr. Samuell held that the commissioners had therefore maliciously inflicted upon the plaintiff this penalty of 201.
A number of witnesses were in readiness to be called, but, as Russell had some objections to take, it was decided to hear him.
Russell said that Mr. Samuell was not correct in saying that the commissioners had refused to hear Mr. Dunville. On the contrary, he was heard, and urged the same grounds of exemption as had been urged all along in the correspondence. After this penalty had been imposed, Mr. Parr was advised to apply to one of the Superior Courts to remove the order of the commissioners by certiorari, on the ground that they had made the order without any jurisdiction to make it; and an application was accordingly made to Willes, J, upon affidavits on each side, and Willes, J. decided that, under the 64th section of the Act of Geo. 3, he had no power whatever to review the proceedings of the commissioners, and dismissed the summons.
His HONOUR.-It he had no right to review the commissioners' judgment, surely this court has not.
Russell. That is so, and that is what I am going to contend. Mr. Russell having read the 64th section, in which it was stated that the adjudication of the commissioners should be final and conclusive, said that Mr. Samuell might be quite right in saying that it ought to be removed from the statute book, and it might be a great inconvenience
PETERBOROUGH COUNTY COURT.
(Before FRAS. ELLIS MCTAGGART, Esq., Judge.)
to Mr. Parr to be called upon to discharge one of bound, certify the grounds of refusal to the court,
again for 501.
Russell said that when the plaintiff was fined 201., even assuming that it was an inequitable order, the conclusion of the commissioners was to be taken as final. If they had done that which the law said should be conclusive, even supposing the order was inequitable, how could that be actionable which they had a legal right to do? Although the present case might serve a useful purpose in an agitation for getting a reform of the law, it was clear that no case could be made out in that His HONOUR said that in substance the court was asked to review the decision of the commissioners, and he wished Mr. Samuell to show where it had power to do that.
Samuell said his contention was that the com
missioners had acted altogether outside the Act, and, having done that, they had rendered themselves amenable to that court for any wrong they His HONOUR said it was the assessors who had done wrong if wrong had been done. The commissioners had no alternative but to appoint the two persons whose names were presented to them. He was of opinion that the court had no jurisdiction to entertain the application, and the case was dismissed.
Russell at first suggested that costs should be given, but afterwards said he would not press
HALIFAX BANKRUPTCY COURT.
(Before Mr. Registrar RANKIN.)
Ar a meeting under this petition for liquidation by arrangement, only three creditors attended. The debts for which they proved were of the respective amounts of 12s. 6d., 61. 6s. 3d., and 41. 138. only. It appeared that the debtor had several other creditors whose respective debts exceeded 101., but they had their remedies against sureties, and declined to attend or prove under this peti tion. The three small creditors above mentioned assented to and duly signed resolutions for liquidation by arrangement, for appointment of trustee without security, and at certain remuneration, and for the discharge of the debtor.
England, solicitor, now presented these resolutions for registration.
The REGISTRAR.-These are special resolutions. See Bankruptcy Act 1869, sect. 125, paragraphs 1and 9. See also Rule 278. Special resolutions require the votes of a majority in number as well as three-fourths in value of the creditors assembled. Now the Act of 1869, sect. 125, para graph 14, enacts that in calculating the majority on a special resolution, creditors whose debts amount to sums not exceeding 101. shall not be reckoned in the majority in number. In this case not one creditor was present who would be accordingly entitled to be reckoned in number, consequently I consider that these resolutions cannot be said to have been carried by a majority in number, and that the requirements of the Act and rules have not been complied with. As far as I am aware this case has not occurred before, either in this or any other court, and I have not certainly seen any decision to gnide me. I must decline registering the resolutions, but I shall, as in duty
Honour in the matter of Thomas Wyche and
the private estate.
mortgagee (Mr. Appleby).
The whole of the afternoon was occupied in
104; Woodfall, Book 2, c. 9; Evans v. Elliott, 8 L. J. 51, Q.B.; Clowes v. Hughes, 39 L. J., N. S., 62, Ex.; Ex parte Hesham, 1 Rose, 146; Ex parte St. Barbe, 11 Ves., jun., 413; Ex parte Castell, 2 G. & J. 124; Bedford v. Button, 4 L. J., N. S., 97, C. P.; Cox v. Bent, 5 Bing. 185; Vincent v. Godson, 24 L. J. 121, Ch.; Ex parte Plant, 2 Dea. & Ch. 160; Richardson v. Bank of England, 4 Myl. & C. 165; Ex parte Living, 2 Mont. & Ayr. 223; Ex parte Carr, 6 Jur. 588; Hungerford v. Clay, 9 Mod. 1; Franklinski v. Ball, 34 L. J. 153, Ch.; Lindley on Partnership Property.) Objection was taken, but afterwards waived, to Mr. William Wyche being heard upon the ground that his ap. pointment was invalid, the separate estate being vested in the trustee of the joint estate.
Nov. 20.- His HONOUR gave judgment as follows:- I am of opinion that the provisions in the deed of partnership between Wyche and consideration of the occupation of his mill by the Bryan, for a half-yearly payment to Wyche in firm for the purposes of its business, do not create a rent for which the party entitled to it can disThat section must, in my opinion, be taken as intrain under sect. 34 of the Bankruptcy Act 1869. tending to give a right of distress in those cases only where the rent is one for which, if bankruptcy had not intervened, the party would have recognising the common law privileges of distress, had a right at common law to sue or distrain; as and allowing it to prevail, notwithstanding the tent to which that privilege is available if exerbankruptcy of the tenant, but curtailing the excised after the bankruptcy. There is nothing to indicate an intention to extend the class of persons by whom, or the subject matter in respect of which, the privilege is exercisable. On this view see whether the ordinary common law relations of of the section, therefore, it becomes important to landlord and tenant are created by the provisions of Wyche and Bryan is to be carried on upon a of the deed. The deed provides that the business certain mill and premises, "the private estates of Wyche, and "that the annual sum of 2101. shall perty to the said T. Wyche, his heirs or assigns, be allowed and paid out of the partnership proin equal half-yearly payments, on the 11th Oct. and the 6th April in every year, for the rent of the said mill and premises; and that all rates and taxes (landlord's property tax only excepted) in nership property." respect thereof, shall be paid out of the said partpears further on. "That the clear profits arising from What" property" means apthe said business" "shall be divided equally between the said partners twice in every year, viz., on the all losses happening in the course of the said busi11th Oct. and the 6th April in every year, and that ness shall be borne by them respectively in the like proportions." "That as well the said rent of 2101. and other outgoings, and the costs of keeping the said mill and all the machinery thereof in good and substantial repair," and of insuring the mill and partnership stock, and of paying clerks, porters, and servants, "and all other expenses which may be incurred by the said partners respectively in the course of the said business, shall be paid and borne out of the profits of the said business, and in case the same shall be insufficient for that purpose, then by the said partners in equal shares." The effect of this arrangement appears to me to be as follows:-If, at each halfyearly striking of an account, the gross profits were sufficient to pay this so-called rent, and all other outgoings and current expenses, Wyche would get 105., and his share of the net profits, if any. If the gross profits were insufficient, or if there were none at all, Wyche would have to pay, out of his own pocket, half of what was necessary to make up the deficiency, Bryan paying the other half. If, therefore, the amount so paid by Wyche equalled the amount (1057.) credited to him for rent, he would, practically, receive none; if the amount so paid by him exceeded 105., he would not only receive no rent, but make a loss besides. There is this difficulty, at the outset, in treating this contract as a demise, that it is a demise (if it can be called so at all) by a partner to his firm, for partnership purposes, without the intervention of a trustee. It is, no doubt possible (though by no means easy), without such intervention, to frame an agreement directly between partners, so as to enable the one to sue the other upon it, by taking care not only to exclude the party sued from all share in what is sought to be recovered from him, but to exclude the party suing from all obligation to contribute towards his own pay ment. But here, if the state of the partnership funds were such as to make them liable for this so-called rent, Wyche would have, in fact, to sue himself jointly with Bryan, and to recover out of funds which were their joint property, or to distrain upon property belonging jointly to both, on premises occupied by both jointly. It is impossible to hold that a tenancy, in the ordinary and common law sense of the term, is created by such an agreement as this. But, independently of this objection, the contract, in my opinion, lacks that certainty which is the essence of a demise. It depends upon the state of the partnership funds,.
DEC. 16, 1871.]
at each half-yearly account, not only whether Wyche is to get all, or part, or none of this rent, but whether the partnership funds are to be liable for it at all; whether what he gets, if he gets any thing, is to come wholly from those funds, or partly from them and partly from Bryan individually. Not only the amount to be paid, but the parties by whom it is payable, and the proportions in which is to be paid by each, are liable to vary with the state of the business each half-year. A fluctuating arrangement of this kind, even if not an arrangement between partners, could not, in my opinion, create a demise in the ordinary legal For these reasons, I am sense of the word. of opinion that Wyche's claim is an equitable one merely, between himself and his partner; one which would not vest in any mortgagee of Wyche's; and one, therefore, which, according to my view of sect. 34, is not enforceable by him or his mortgagee, wholly or in part, under that section. I am of opinion that the trustee of the joint estate of Wyche and Bryan is the person in whom the claim for this 7001. is vested; not as rent, but as a partThe bankruptcy of nership item of account. Wyche and Bryan, which relates back to the proceedings in liquidation in March 1870, vested both the joint and the separate estate of each partner in the trustee under that bankruptcy. The subsequent proceedings in liquidation taken by Wyche separately, in April 1870, became, as was admitted upon the argument, inoperative and void. It will be the duty of the trustee under the bankruptcy of the firm to carry this claim to the credit of Wyche's separate estate; which will not, however, be entitled to receive a dividend out of the joint estate in respect of what may be due under this claim until the other joint creditors have been paid in full. The rule upon this point is clear. There is an exception where the partner's claim upon the firm is for a debt contracted by the firm with him in the course of a separate trading. But it is not sufficient that there should merely be such separate trading. The debt itself must have been contracted solely and strictly in the course of that trading: (Ex parte Williams, 3 M. D. & D. 433.) The claim here is for the balance of the rent (purely a partnership item of account), after setting off the debt due in respect of the separate trading: and does not, therefore, fall within the exception to the rule.
Notice of appeal was given.
CORRESPONDENCE OF THE
THE LAW TIMES.
serted in the deed, as regulating the ad valorem Duty;
payable, and that then the duty (ad valorem) must
AN ARTICLED CLERK.
THE STAMP ACT.-I should be much obliged by your inserting this letter in your next issue. Sect. 60 of the Stamp Act (33 & 34 Vict. c. 97) duly certificated attorney," &c., who shall draw expressly states that every person not being a or prepare, either directly or indirectly, any instrument (save such as are excepted by the Act), relating to real or personal estate, or any proceedings in law or equity for or in expectation of any fee, &c., shall forfeit 501. The section is somewhat ambiguous.
What is meant by the words in italics? Would, for instance, a person drawing and preparing an apprenticeship indenture, either with or without a premium, under seal be liable to above penalty? It is, by the way, important that this should be generally known, as many masters bind their own apprentices on stamped forms supplied by the stamp distributors, or employ attor neys' clerks, agents, and accountants to draw up work belonging solely to solicitors. AN ATTORNEY. OBSERVANDA indentures of apprenticeship, which of course is The following is a form of transfer :. Coupon for £
Stock forwarded to the Company's Office.
In consideration of the Sum of
COUNTY COURT JUDGES.-Those most able to form an opinion on the merits and ability of County Court Judges, are those regularly practisbefore the courts, and those are the attorneys.
hereinafter called the said Transfereeing
TO HOLD unto the said Transferee
cutors, Administrators, and Assigns,
the several conditions on which
the said Transferee
to accept and take the said
by the above-named
There is a class of men at the Bar who receive
NOTE.-This department of the LAW TIMES being open to free discussion on all professional topics, the Editor is not responsible for any opinions or statements contained in it. TRANSFERS OF RAILWAY STOCK.-I have read with some surprise the report of the action Case v. McClellan, tried in the Common Pleas on the 24th Nov. last, in which, as I understand it, it was ruled that a footnote at the end of an ordinary transfer of railway stock (used in Liverpool) is part of the transfer, and that such foot note is binding on a seller of railway stock, because it is the usual form adopted by the Liverpool Stock Exchange, and that the operation of such foot note is to compel a seller to sign a receipt for a larger sum of money than he is to receive. I have obtained a Liverpool transfer form, and therefore am able to give the words of the foot note, which are as follows: "N.B. The consideration money set forth in a transfer may differ from that which the first seller will receive owing to sub-sale of the original buyer; and the Stamp Act requires that in such cases the consideration money paid by the sub-purchaser shall be the one inserted in the deed as regulating the ad valorem duty. The fol- Signed, sealed, and delivered, lowing is the clause in question: And where any person having contracted for the purchase of any lands or other property, but not having obtained a conveyance thereof shall contract to sell to any other person, and the same shall in consequence be conveyed immediately to the sub-purchaser; Signed, sealed, and delivered, the principal or only deed or instrument of conveyance shall be charged with the said ad valorem duty in respect of the purchase or consideration money therein mentioned to be paid, or agreed to be paid, by the sub-purchaser (55 Geo. 3, c. 184, p. 1570) I cannot think that such a foot note is part of the transfer, or that it is binding on a seller; but for the present I will assume both these points, and confine my remarks to the other point-namely, that a seller is bound by the wording of that foot note to execute a transfer, wherein he knowingly acknowledges to receive a larger sum of money than he is going to receive. Now, we lawyers all know that to a sale of "Land or other property,' no stamp duty is attached, and that A. may sell to B. for 1000l., and B. to C. for 12001., and C. to D. for 14001., and so on, and incur no stamp duty beyond the ordi nary agreement stamp (6.), and that it is only may differ from that which the first Seller will receive is represented as to both branches very efficiently when a sale is completed by an actual conveyance owing to sub-sale of the original Buyet; and the Stamp of the land or other property, that stamp duty is Act requires that in such cases, the consideration
PUBLIC PROSECUTORS AND SANITARY ACTS. CONSOLIDATION BILL.-The present Government have neither been so fortunate in their legislation or in their administration as to induce us to repose entire confidence in their manipulation of legal measures. Therefore it is that I venture once more to bring under the notice of the Profession the need of a Public Prosecutors' Bill, feeling assured that we may wait till the Greek Kalends, if we are to wait for a satisfactory and successful Government measure. Now, the legal Profession
whether they sit on the right or left of the Speaker in Parliament, and surely those who represent it,