Page images

are sensible, and display a sufficient amount of reading to render the decisions thoroughly intelligible. This being no promiscuous collection of cases, but, as we stated at the outset, comprising only such as illustrate general principles, it must constitute a valuable work of reference.

A SOLICITOR'S LIFE AND ITS LESSONS.(a) A SUCCESSFUL solicitor must always be an object of a certain amount of reverence and curiosity to members of his own branch, and, we believe we may add-especially if he have a continuing professional existence-to the other branch of the Profession. But successful solicitors are of two classes. There is the successful solicitor who succeeds without caring very much how he does it; and there is the successful solicitor who is successful because he is able and honest. The outside world is slow to believe that which is most undeniably true, that the more honourable, the more strictly conscientious a solicitor is, the higher he rises in professional reputation and material prosperity. Unhappily, the system of paying solicitors which at present prevails, is calculated to produce in non-legal minds a false impression as regards solicitors and their means of making money. A client thinks it witty to tell his friends that he paid six-andeightpence for looking at an attorney's clerk. As a bare statement it undoubtedly involves a hardship and an absurdity: The client, however, omits to inform his friends that he paid his lawyer a miserable forty-two shillings for the whole of one day's hard and responsible work, involving possibly the happiness and prosperity of the client's children, or his own safety in the purchase of property: Turning to the work before us, we find that the subject of Dr. Sadler's memorial, Mr. FIELD, wrote strongly on this subject so long ago as 1810, and he said, “The false and mischierous principle of paying for what is not done by way of compensation, for not paying for what is done, pervades the whole frame of the law; the Bar itself is under it, though not equally so with the solicitors.” And he adds, “To give all practitioners an interest in form and prolixity, and so tempt them to spin out in every way, instead of lessening the clerk-work part of their business, manifestly tends to damage the integrity of their minds.” We are not aware that Mr. Field resisted the common temptation, and we should not think of dividing the Profession into those who do not resist the temptation, as we doubt whether any of the former do or ought to exist under the present system. We will go on to explain by reference to the life of Mr. FIELD, as told by Dr. SADLER, what we mean by the two classes of practitioners. We shall state what Mr. FIELD was, and leave the class which he did not represent to be imagined by our readers.

It is always an honour to an articled clerk to become a member of the firm under which he served his apprenticeship. The friendship which existed between Mr. Field and the members of the firm of Messrs. Taylor and Roscoe, and more especially Mr. Roscoe, was of a nature calculated to bring out in the articled clerk all his good points, and to repress the evil dispositions which every man has in a greater or less degree. And here we may remark that such intercourse is greatly to be desired. Without the countenance, encouragement, and indeed the personal friendship of his principal, the articled clerk's life during apprenticeship can scarcely be a pleasant one, and is most probably unprofitable. We regret that there is so much cause for complaint on this score. Education reformers urge the absence of supervision as regards law students, and undoubtedly this want is a serious

Mr. FIELD_evidently prized highly the friendship of Mr. TAYLOR and Mr. Roscoe, and Dr. SADLER gives us a pleasant sketch of his industrious life as an articled clerk. He very properly adds, “This sketch of Mr. FIELD as an articled clerk, which presents rather a striking contrast to the life of a good many articled clerks, and other young men in London now-a-days, would be very

incomplete without a few lines from a letter to his own clerks in 1858," one passage cited being, “If heretofore I have been of any use to you, it is chiefly because I myself had far better masters than I have been to you.” In another passage he says : "To the tastes infused into me by my dear friend ROBERT Roscoe, in whose family I lived for some years, I attribute much of the pleasures of my subsequent life." What were Mr. Field's relations with his ordinary clerks, he himself stated in a letter to the hundred clerks and pupils who presented him with his portrait. “During my law days," says Mr. FIELD, “the profession has greatly improved in its character and habits-improvements, I am satisfied, now only in their beginning, and the progress of which I know every one of you will heartily aid. One point, I think, wants more consideration than it has had: we want, among us lawyers, more of what would be the equivalent of the clinical teaching of the medical profession. I mention this, because I believe that there has been between you and myself greater harmony and intimacy, and a greater amount of mutual reliance and common action, than is usual between master and pupil; and I attribute this to our having been more clinical in our ways than I think most are, i.e., to the practice you know I have always followed, of having one of you at work on the same job with me on all possible opportunities, even

(a)Edwin Wilkins Field : a Memorial Sketch by Thomas Sadler, Ph.D. London: Macmillan and Co.

during the most private conferences with the client. I am satisfied this is right. Trust a man, and he becomes worth trusting ; and the client has the great advantage that the subordinate helper works in intimate possession of all the minutiæ of his affairs and desires. I am sure it is pleasant and profitable. • See everything that is done, and how it is done; but do nothing yourself which another man can do for you,' is the true master's rule. It is the way to get work through easily, quickly, and with intelligence ; and certainly the way to unite master and clerk in mutual bonds of confidence and regard. I hope such of my old clerks as become masters may follow my way this respect. “It is all very well to talk about masters--that A is a great man of business, and so on; but what is the captain without his men ? Thanks to you, my good friends, and to your exertions, it has been my fortune to sail rarely without a first-rate crew; and many is the little bit of praise I have got which really ought to have been yours. Thanks to you for more than this. The rest of my voyage can't be long; and the expressions of regard you have just made will enable me to bear up and steer right onward through future squalls and vexations with better heart than I could otherwise have had.”

A long chapter (the second) is devoted by Dr. Sadler to a history of Mr. Field's efforts in the direction of Law Reform. To a vigorous pamphlet of his is in some measure attributed the improvement produced in the practice of the Court of Chancery by the abolition of the offices of the six clerks and sworn clerks; and his influence is traced upon the practice connected with the winding-up of companies, and various other matters which we need not enter upon. But one of his latest labours had reference to a subject which will probably bring credit upon persons who will owe to him some little at least of their celebrity-we refer to the concentrated law courts. “The Acts of Parliament of 1865, authorising this measure,” says Dr. SADLER, “ were owing in no small degree to Mr. FIELD's energetic exertions-exertions begun upwards of thirty years before, while he was still a young man, and continued with all his characteristic vigour and devotion through the intervening years. His evidence given before the House of Commons Committee appointed in the earliest stage of the agitation, furnished these, and continued to furnish to the last, the chief arguments in favour of concentration."

We have indicated in the main the prominent features of Mr. FIELD's professional life. That life was one of great labour, but the common notion that a successful professional man finds but little time for relaxation is at variance with the illustration afforded by the biography of Mr. FIELD. We find it difficult to understand the nature of a man who has no pleasure outside his office; and probably he is as rare an individual as is the enthusiast, such as Mr. FIELD was, in art and nature. Dr. Sadler gives us a very pleasant account of the holidays spent on the margin of the Thames. “ Formerly his habit was to take a house for the autumn months, varying the places, so as to become familiar with all the chief points of interest; but some years since he took a lease of the Mill House, Cleve, near Goring, and made it a country house, to which he could go, not only during the Long Vacation, but also for a day or two at any time when he had a little leisure or needed rest. And what a pleasant life that Thames-life was! There was so much doing, so much that was interesting going on, so much enjoyment, so much freedom, and withal, so much quiet.” This life, wearisome to many men who conceive that foreign travel, and the excitement of seaside watering places alone constitute the joys of a Long Vacation, was enjoyable simply because Mr.' FIELD had enormous powers of enjoyment in himself. He resisted the narrowing influence of legal practice, and expanded his mind by the cultivation of art and poetry. In this way he preserved until an advanced age the freshness of his intellect. In religion he was an Unitarian, but with far too large a sense of individual responsibility to be in the least degree intolerant of others. His political opinions were those of a Liberal, but not of the advanced class.

Such was the great solicitor who lost his life in the Thames which he loved; and the lessons to be drawn from his career are plain and simple. And in the first place we would remark upon the importance of general culture if professional men are to be saved from the wretched destiny of becoming mere practitioners. The cultivation of art, the indulgence of a taste for poetry, and an enthusiastic appreciation of the beauties of nature, by no means derogate from the practical usefulness of the professional man. The case of Mr. Field shows, on the contrary, that they may qualify him to deal with cases more thoroughly and effectively than a mere dry lawyer could do; and they most certainly enable a man to extend his circle of friends, which is of itself an immense advantage to a solicitor. The lesson taught to articled clerks is this: Seek the friendship of those above you; cultivate acquaintances who can teach you something; and read diligently whilst under articles. To solicitors the lesson is a large one, but mainly this : Make your clerks your friends; make the interests of the firm their interests; associate them in your pleasures as well as in your labours; and always let the meritorious worker obtain the praise due to his services. We need hardly point to the value of candour and probity in business illustrated by the career of Mr. FIELD; and we will only add that it is important to remember how much





good a very busy man may do if so disposed, and how much he may two younger, was brought up to be dealt with under the 10th enjoy whilst neglecting no duty. We hope Dr. Sadler's very section. Without being over sentimental, those who saw him interesting biography will find its way into the hands of many of might have been excused for thinking that a boy not much more our readers.

than half way through his teens could hardly be called incorrigible,

but then his transgressions were of an exceptionally heinous INCORRIGIBLE ROGUES.

character. “Not having the fear of God before his eyes,” and, Ar the risk of offending readers who have all provisions of probably, not knowing of any house roof under which to lay his all statutes on all subjects at their fingers' ends, we venture to

head, this hardened offender had actually been twice caught assume that comparatively few practitioners are as familiar as

sleeping in a barn, and (alas for the depths of human depravity!) they might be with some of the provisions of the Act passed in

had once been found taking his nightly repose under the the 5th of Geo. 4, c. 83, “ for the punishment of idle and dis. canopy of heaven!

Manifestly, these were offences to be orderly persons, and rogues and vagabonds, in that part of Great severely dealt with, especially as the policeman who prored Britain called England. Upon what may be called the ordinary

the convictions was able to inform the Bench that the and everyday sections of the Act, by which justices are enabled to

prisoner sometimes begged, seldom worked, but never stole. send mendicants, gipsies, prostitutes, practitioners of palmistry,

Therefore, the chairman, after gravely admonishing the delinquent street gamesters, wife deserters, and suspected persons, to gaol for

as to the bad way he was in, and reading over the section to let short periods, it is unnecessary to enlarge, though it may be that

him know what might yet be in store for him, sentenced him to a somewhat loose practice has grown up amongst

“their wor

six months' imprisonment with hard labour, very properly dis. ships” of treating every disreputable person as a rogue and a

regarding his entreaty to be sent back to his own parish, which he vagabond, if no more serious and specific charge can be made or

stated to be Brighton. proved against him, just as, until the decision of the Court of We should be sorry to write other than respectfully of the Queen's Bench in Halley v. Perks (35 L. J. 177, M.C.), it manner in which the magistrates of Kent, as of other counties,

the fashion to convict of unlawful possession, when discharge their difficult and important duties. We readily admit there were

some grounds for suspicion, but not sufficient that their action on this occasion, was prompted by an earnest proof of felonious receiving.

We are

not disposed how- desire to obey the law and accomplish the ends of justice. ever, to find much fault with this exercise of magisterial But we cannot help observing that the case suggests some very jurisdiction, or to take up the cudgels on behalf of that unpleasant reflections. Commitals under the 10th section are unhappily large class, whose habit and custom it is to live, generally reserved for persons such as Wm. Hardwick, of as it were, on the confines of crime, and in absolute vagrancy, whom å newspaper report spoke as having been thirty-five rather than do a day's hard work. Our concern is with those times in prison, and who lived while out of it by begging parts of the Act which deal with the “incorrigible," as distin- from foot passengers, whom he abused unless they bought guished from the ordinary rogue. The 5th section puts in the peace by the payment of black mail. To fellows of this sort, former category all persons who break prison after con- the epithet "incorrigible” is properly enough applied, and viction under the Act; who resist the officers who appre- upon them the full punishment permitted by the Act may, hend them for offences under the Act, and who “ commit any minus the flogging, be reasonably enough inflicted. But it is offence under the Act which subjects them to be dealt with as a grievous mistake to brand a boy of eighteen with an ineffacerogues and vagabonds, such persons having been at some former able stigma for sleeping in barns and outhouses. Those who know time adjudged so to be, and duly convicted thereof.” Any justice most of prison life will most profoundly regret that a lad of the peace before whom such an offender is brought, may against whom no positive crime was charged should be sent commit him or her to the House of Correction, there to remain for six months to a common gaol. And those who are best able until the next general or quarter sessions, being kept to hard to forecast the consequences of such a sentence will most confilabour meanwhile. The 8th section provides that the incorrigible dently predict as the probable result of Robert Waley's incarrogue may be searched, his property taken from him, and applied to ceration as an incorrigible rogue, his gradual development into the expense of his apprehension and maintenance in prison. The a professional thief and an habitual criminal. Society may benefit ninth enables justices to bind persons over to prosecute at the by shutting up for twelve months the thirty-five times convicted sessions, and provides for the payment of such persons' expenses, extortioner of money under the name of alms; but the public is while the tenth enacts that “when any incorrigible rogue shall injured and the law is discredited when the sin of sleeping in the have been committed to the House of Correction, there to remain open air is visited with so severe a penalty as has fallen upon until the next general or quarter sessions, it shall be lawful for Robert Waley. the justices of the peace there assembled, to examine into the circumstances of the case, and to order, if they think fit, that such

THE LAW OF COSTS. offender be further imprisoned in the House of Correction, and be there kept to hard labour for any time not exceeding one year

In the Third Report of the Common Law Commissioners 187 from the time of making such order, and to order further, if they

it is well observed that “the statutes which give to the parties a think fit, that such offender (not being a female), be punished by

right to costs are in a very confused and unsatisfactory state. . whipping, at such time during his imprisonment, and at such

Subsequent statutes have in some instances modified, and in place within their jurisdiction, as according to the nature of the

others partially repealed, former enactments, so that it is ex• offence they in their discretion shall deem to be expedient.”

tremely difficult to ascertain what the real state of the law is on We have already stated that we do not regard the “incorrigible

this subject." Now, there can be no sort of doubt that the statute rogue” as a very valuable member of society. Still, we think,

30 & 31 Viet. c. 142, bas dore away with much of the confusion and that if this Act were generally enforced, the poor fellow would

uncertainty that attended the law of costs; a confusion that has have an exceptionally hard time of it. If, after one conviction, he

hung around this branch of the law since 1 Edw. 1 c. 1, commonly indulges in his natural laziness, so that himself, or anyone whom he

known as the Statute of Gloucester. Much of this may have is bound to support, becomes chargeable to the parish; if he hawks

arisen from the fact that damages and costs were in old time goods without a licence, or wanders abroad to beg, or pretends to tell

mixed together, both in awards and in the verdicts of juries; and a fortune, or is (sect. 4) “found lodging in any barn or outhouse,

much is doubtless attributable to the fact that the law on this or in any deserted or unoccupied building, or in the open air, or

subject is the creature of successive legislative enactments, which nnder a tent, or in any cart or waggon,” not having any visible

strove from time to time to supply some omission, to remedy some means of subsistence, and not giving a good account of him

defect, or to correct some inequality in the statutes of former years. self, he may be arrested, say immediately after the sessions

But although the 30 & 31 Vict. c. 142, may have done a have been held in January, kept to hard labour for three

great deal to simplify the law of costs, it is not too much to say months, until the next sessions in April, and then sentenced

that there is something still left to be done. For example, in the to hard labour for twelve months more, with the addition

case of slanderous words, actionable in themselves. Actions of of a whipping, which may be given the day before his

this class are, as far as costs are concerned, subject to the stat. discharge, leaving him with a smarting back to wander at

21 Jac. 1, c. 16, s. 6, and do not fall under the seemingly general large again, and perchance again be sentenced to imprisonment

rule laid down in sect. 5 of the County Courts Act 1867. The for a longer period than many twice-convicted thieves, and to

statute of James enacts “ that in all actions upon the case for corporal punishment which some humanitarian senators were

slanderous words, if the jury, upon the trial of the issue in such unwilling to inflict upon garotters. His only safeguard is in

action, or the jury that shall inquire of the damages, do tind orassess that magisterial discretion, which, for the most part, knows how

the damages under 40s., then the plaintiff shall have and recover to temper what the law calls justice with that mercy of which even

only so much costs as the damages as given, or assessed, amount an incorrigible rogue is not altogether unworthy, and in the

unto, without any further increase of the same.” Here, then, in etery exercise of which society is not less deeply interested than the

case where the words are spoken of the plaintiff' himself, and are culprit himself. For we hesitate not to say, that if the Act were

in themselves actionable, the plaintiff, if he recovers less than Hs., literally enforced, we should have to double our prison acommo

gets no costs at all, unless the Judge certifies under the 3 & 4 Vict. dation, and quadruple our county rates. We regret, therefore,

C. 24, in which case he gets as much costs as damages. to have to notice an instance of what we cannot but regard It was argued in the case of llarshall v. Ja til (21 L. T. Rep. X.S. as a mistaken resort to the powers of the 10th section, which 788) that although in Evans v. Rers (9 C. B., X. S., 391) occurred a few weeks ago at the Sessions for the county it was held that a Judge's certificate under 3 & 4 Vict. c. 4, of Kent, holden at Maidstone, when Robert Waley, a lad s. 2, did not control the operation of the statute of James, yet that described as eighteen years of age, but who looked a year or sect. 5 of 30 & 31 Vict. c. 142, did; for the words of the latter Act



[ocr errors]

are different, and its object was to give the Superior Courts a general jurisdiction, and to award the plaintiff his costs in spite of any earlier enactment. Marshall v. Martin was an action for slanderous words imputing felony to the plaintiff, tried before Pigott, B., when a verdict was given for the plaintiff, damages 1s. The learned Judge certified under 3 & 4. Vict. c. 24, s. 2, that the slander was wilful and malicious; and under 30 & 31 Vict. c. 142, s. 5, that there was sufficient reason for bringing the action in the Superior Court. The master on taxation allowed the plaintiff his costs. A rule to review this taxation was made absolute, Chief Justice Cockburn saying in his judgment, “ All that was intended by the latter part of sect. 5 of the County Courts Act was to enable the court if necessary to review the decision of the Judge presiding at the trial as to costs. But it was never intended to repeal the enactment in the statute of James, which limits the amount of costs to be recovered in an action like the present. As there is therefore no express or implied repeal of the statute of James, the plaintiff can recover no more costs than damages." Mr Justice Mellor and Mr. Justice Lush, concurred.

The power of certifying seems to have been given to the Judge under such statutes as 43 Eliz. c. 6, and 22 & 23 Car. 2, c. 9, in order to impose some check upon the bringing of trifling actions. These statutes were so misconstrued, and found so inadequate towards remedying the evil they were intended to prevent, that the statute 3 & 4 Vict. c. 24, was passed. In earlier times the court had in some cases (as where the demand was certain, e.)., in debt: Year Book, 10, Hen. 6) a discretionary power to increase or abridge damages and costs. So also in cases of inquisition by jury to assess damages, but not upon trial in cases of tort except as to costs. Now, if a discretionary power to certify, as under 30 & 31 Vict. c. 142, s. 5, be wisely lodged in the hands of the Judges, so as to give them to a certain ext nt a corrective jurisdiction over the verdict of the jury, why should not this power be extended to actions for slanderous words actionable in themselves? If the action be really trifling and vexatious, and the jury find for the plaintiff with nominal damages, the Judge will still have power to deprive the plaintiff of his costs by refusing to certify. On the other hand, it may be most desirable that the plaintiff who receives less than 40s. in an action of this sort should have his costs; why then, should the Judge be prevented from certifying for them any longer by this statute of James I.? There are two possible classes of events which would make it better that the Judge should have such discretionary adjusting power in this case as he now has where the County Courts Act 1867 applies. The first may be exemplified by a case which occurred very lately at Nisi Prius. There was a count for special damage, and one for general injury in the declaration. The jury, negativing the special damage, were anxious to give the smallest damages that would carry costs, and returned a verdict for the plaintiff, damages ls. Had the Judge possessed the power of certifying, the intention of the jury would have been carried out, as it was it was frustrated. So also was any wish the Judge might have had to benefit the plaintiff by certifying for costs.

Another possible class of events is where juries go wrong from other and less creditable motives than those which operated in the case just mentioned. Here, also, it is difficult to understand why the ancient statute should remain to separate actions for slanderous words from other actions of a kindred character. Now, if there be any sort of action in which bitter feeling is likely to show itself, and in which some thrills of that feeling are likely at times to be felt hy a jury, it is an action for slander. Here therefore, if anywhere, is it desirable that a power to correct anomalous results and to compensate inequalities should be given to the Judge, both as against the plaintiff and the defendant. There is one, and that not a difficult way of doing this, and that is, to pass some one general enactment, which shall be at once large in comprehension and clear in wording—one that shall clear away some, if not all of the incongruities and difficulties which have beset the history of costs. Sect. 5 of the County Courts Act 1867 has been held to be a disabling one; and we can hope but little in the way of such improvement as shall be clear and at one with itself from an endless succession of exceptions and a series of disabling statutes.

It is much to be desired that some means may be devised to make the law of costs certain and uniform. If there must be exceptions, let them be marked off in classes easily distinguishable by some notable differentia. There should be no arbitrary exception; no instance of some action standing by itself, in helpless and unexplained loneliness. Least of all, perhaps, should slander form that exception. Let the statute 21 Jac. 1, c. 16, s. 6, perplex and harass us no longer. If it be thought unwise or premature to ask for a codification of our laws in general, and for all the supposed certainty that would flow therefrom, it cannot be too rash to insist on a diligent inspection of details, and it may be doubted whether positive enactment is not for the most part to be preferred as a remedial measure, wherever it is possible and practicable to negative legislation. We say this in view of some directory general Act as to costs. Meanwhile, we can, at any rate, brush away useless enactments that are at variance with the spirit of modern theory, and hinder the full application of the principles of modern practice.

THE AMENDMENT OF THE BANKRUPTCY ACT 1869. We are glad to see that the exercise of the judicial powers of a Superior Judge by registrars in bankruptcy, to which we have so frequently directed attention, has called forth remark on the parte of the press. A contemporary considers that the time has now arrived for considering whether some of the provisions of the Act of 1869 ought not to be amended, and among them the power of the Chief Judge in bankruptcy to delegate to registrars business of the first importance. The observation which we have so repeatedly made is thus re-echoed—“ The intention of the Legislature has been defeated by the appointment of a chief judge, who is precluded by his other duties from sitting more frequently than once a week, and by the transference of important judicial functions to subordinate officers, the result being that appeals are necessarily multiplied, to the ruin of parties, the encouragement of dishonest litigation, and the grievous delay of justice.” It is added by this writer that the remedy for this state of things would clearly be a short amendment Act which should distinctly define the province of the registrars, and render it impossible that questions of first-rate importance should go before the Court of Appeal without having been submitted to the consideration of the Chief Judge in Bankruptcy. We doubt whether an Act should be passed for this purpose alone. There are several matters calling as loudly for the attention of the Legislature in the same department of law, and to begin tinkering would be to make confusion worse confounded. We agree that it is time that amendments were made in the Act of 1869, but let us have one Act to wipe out the many blots that have been hit. And amongst these blots we may refer to the present position of execution creditors. After a conflict of judicial decision, owing to the failure to re-enact provisions of old Acts of Parliament, two positions have been arrived at, subject in the one case to an appeal. The first is that an execution creditor for an amount under £50, due to him by a debtor, who is a non-trader, may realise his judgment by simple seizure of the goods of his debtor before notice of an act of bankruptcy. The second position is that an execution against a debtor, who is a trader, for an amount over £50, is ineffectual to vest in the creditor the property in the goods seized unless the seizure is followed by sale before an act of bankruptcy. In the recent case of Ex parte Rayner, re Johnson, which we report this week, the Chief Judge took occasion to acknowledge himself corrected by the decisions in Slater v. Pinder and Eparte Rocke, re Hall, as to the case of a debt by a non-trader under £50. The learned Chief Judge makes some very lucid remarks on the subject, which show that, whilst bowing to decisions overruling and at variance with his own, he has a very strong opinion in favour of the reasons by which he arrived at his conclusions. All our readers do not see our reports, and for some at least the following extract from the judgment in Ex parte Rayner will prove of interest. The case before him was that of an execution for over £50 against the goods of a trader, not completed by sale, and in deciding that the property vested in the trustee under a liquidation, the petition being presented after the seizure, his Honour said :

It has been decided in the courts of common law that a judgment-creditor who levies an execution by seizure, without notice of an act of bankruptcy, has a right to complete that seizure by sale, not withstanding a subsequent act of bankruptcy and an adjudication. This decision has been adopted and confirmed by the Court of Appeal in Bankruptcy; and the opinion I had expressed that this court could, by injunction, prevent that consummation of the inchoate right of a judgment creditor (for a debt less than £50 or against the goods of a non-trader) who had seized without notice of an act of bankruptcy, which could alone counteract the provisions of the statutes providing for the distribution of the debtor's estate pari passu among all his creditors, has been refuted by the judgment of the Court of Appeal. Thenceforth the law must be taken to be settled in this respect; and I not only bow with unaffected deference to the exposition of the statute (which contains all the law on the subject) which has been pronounced by the high tribunals to which I have alluded; but if I were less inclined than I am, I cannot hesitate to submit to their deci. sions, all of which are entitled to the utmost respect, and by one of which I am conclusively bound. I have said so much because of the frequent reference which has been made in the course of the argument of the present case to the cases of Slater v. Pinder and Rocke v. Hall. But it is obvious that neither of those cases has any direct bearing upon the points which have been argued in the case I am called upon to decide, because neither of them is affected by those clauses in the Bankruptcy Statute of 1869 upon which this question is to be decided, since neither of them depends upon, or is in any degree affected, by the 87th section, and it is upon that section that the present question must, as it seems to me, be determined. Whatever may have been said upon the subject of an execution creditor“ holding a security, for his debt," I take the law to have been established by the judgment of the House of Lords, in Giles v. Grover (9 Bing. 128), founded upon the elaborate exposition contained in the opinions of the majority of the common law Judges, and that law is stated to be that "the seizure of goods by the sheriff will not vest any property whatever in the creditor under whose writ the seizure is made ; that the property which is vested in the sheriff by seizure is merely that which results from his being the appointed officer of the law, and to enable him to sell the goods and raise the money, not that the property is taken out of the debtor ; that the goods are in substance in custodia legis; the seizure by the officer is for the benefit of those who are by law entitled; it is made against the will of the debtor, and no property is transferred by any act of his to the sheriff." It being, therefore, as I think, clear that at the time when the title of the trustee accrued, the goods in the hands of the sheriff were the property of the bankrupt, subject, no doubt, to whatever might be the right of the execution creditor ; and a question having arisen between that creditor

certainly is not—but go at once to the reference. Consequently, all the statements of the peculiar circumstances of special cases, which are rarely, indeed it may be said nerer, exactly repeated, seem to us to be wasted labour.

But let us award Mr. Copinger the praise which is certainly his due for the evident industry which he has devoted to a dry and almost mechanical task. Compared to the labours of the lawyer, work of this kind stands in much the same position as that of the maker of instruments to the work of the mathematician extremely useful, even indispensable, but very subordinate; and it is a matter for thankfulness that there are members of the Profession to undertake such a task. We entertain no doubt that Mr. Copinger's work will become a necessary book of reference; and, as it is overdone rather than not done enough, its value is perfectly plain.

and the trustee whether there should be a sale of such goods or not, it became the imperative duty of the court to decide that question " for the purpose of doing complete justice, or making a complete distribution of the property.” And I desire to be understood as dealing with this question, not upon the ground that this court by granting an injunction may prevent that sale which the creditor desires to effect for the purpose of completing his title, and which point is covered by the Lords Justices' decision in Rockev. Hall, but upon the question which the court, a court of law and equity, is called upon to decide between the execution creditor, who claims the proceeds of the sale, and the trustee, who claims the property in the goods seized. The 87th section contemplates the case of a sale having been actually made, but it also provides that the sheriff wholes sod, having notice of bankruptcy, shall hold the proceeds of such sale upon trust, to pay the same to the trustee. In equity, therefore (whatever may be the rule at law), the proceeds of the sale being the property of the trustee and of him alone, it would be strange indeed if he could not exercise a choice whether he would or would not incur the expense of a sale which might not only be burdensome to the estate, but which might be positively disadvantageous. A sale by auction of fix. tures in th: shop or manufactory of a bankrupt trader might be mere waste, or destruction, and a multiplicity of cases might be suggested, in which it would be obviously to the interest of the creditors that a sale should be hiresented. How can a court of equity refuse to a cestui que trust the right of preventing his trustee from selling the trust property; and upon what ground can the court entertain the objection of the execution. creditor against the preventing the sale? If the sale should take place the execution-creditor can derive no benefit from it, for the statute in express teras declares that the proceeds shall be held in trust for the trustee. And so far as the contention of the creditor in this case is, that he is entitled to insist upon a sale in order that he may receive the proceeds of such sale. I am compelled to decide that against him, because in my opinion ths87th section has conclusively decided that the proceeds of the sale, if made, whatever be the rights at law of such creditor would belong to and be held in trust for the trustee. The circunstance that a sale has not actually taken place appears to me to make no difference, the only person concerned in the result of a sale being tho trustee. That the order made in this case is sustainable under the 13th section of the rules and orders I have no doubt, since the purpose and object of such order is, in the words of the Lords Justices in Kocke v. Hall, to “stay a sale with the view to the better administration of the estate, and the protection of the property.” The statute having decided the right of the trustee to that property, the appeal motion will be refused.

These and such like questions, of which there are several, ought to be attentirely considered by Parliament in an amending Act, and tie trust that nothing will be done until effectual and comprehensive amendments can be made by a single enactment.

[ocr errors]



[ocr errors]


Concise Manual of the Law relating to l'endors and Purchasers

of Real Property. By H. SEABORNE.—London : Butterworths. Tie title of this work speaks for itself, and, to give our readers a notion of the way it is done, we extract the portion relating to

After the habendum follow the covenants for title, &c.

Fiduciary vendors enter into no other covenant than that they have done no act to incumber the estate, and the same rule applies to incum. brancers joining in the assurance and releasing the estate.

When the sale is effected by trustees under a will, and the purchasemoney is of considerable amount, it is usual to make the parties benefi. cially interested covenant for title to the extent of their respective interests, though according to the rule of the Court of Chancery a pur. chaser is not in such a case entitled to covenants for title.

If the estate sold should be the property of a married woman, the husband enters into the same covenants for title as it the estate were his

Where a power of sale is exercised with the assent of a tenant for life, the purchaser is entitled to covenants for title from himn.

It is not the practice for a vendor to enter into absolute covenants for title, but such covenants are limited to the acts of parties having had possession since the last sale of the estate : thus, if the vendor himself purchased the estate for a valuable consideration, the covenants would be limited to the acts of himself, but if the property should have descended to the vendor or have been devised to him, then the covenants will extend to the acts of the devisor as well as the vendor.

Covenants for title are said to run with the land, that is, they will pass by the common law to the assignees of the land, whether such land be of freehold, copy hold, or leasehold tenure, who may maintain actions upon them against the vendor and his real and personal representatives, but the covenants should be entered into with the seisinee to uses on the sale of an estate in fee.

Restrictive covenants entered into by a purchaser in fee simple, precluding him from building or using the land in any particular manner, are not covenantswhich run with the land; but a purchaser of land from a vendor, who is personally liable for the observance of restrictions of this nature in respect of the land sold, is bound to covenant with the vendor to remain subject to such restrictions, if on the purchase it was intended that he should remain so subject to them, and the same rule will apply to liabilities for which the estate stands as a security.

Equity will, however, restrain a purchaser under such restrictions, and persons purchasing from him with notice thereof, from using the land in such a way as to commit a breach of the covenant; but want of notice by reason of the purchaser's neglect to investigate the title will not protect him, if by so doing the restrictive covenant or covenants would have been disclosed.

The covenants for title usually contained in a conveyance of freehold property, where the vendor is the party beneficialiy interested in the purchase. money, are that the vendor is seised in fee, has right to convey, for quiet enjoyment, freedom from incumbrances, and for further assurance.

The usual covenants contained in an assignment of leaseholds are, that the lease is valid, that the rent has been paid and the covenants have been performed, for right to assign, for quiet enjoyment, freedom from incum. brances, and for further assurance.

The assignment usually contains a covenant by the purchaser to pay the rent and perform the several covenants contained in the lease under which the property is held, and to indemnify the vendor therefrom, but in a sale by the assignees of a bankrupt, the purchaser cannot be required to enter into such a covenant, though it is otherwise on a sale by an erecutor; and it is assumed that a purchaser cannot in any case be called upon to enter into such a covenant where the vendor will not be under any liability to the rent and covenants after having parted with the lease or his interest therein.

The covenant that the rendor is seised in fee of an estate of freehold tenure will be broken if the estate turns out to be copyhold.

The covenant that the vendor and another conveying party have good right to convey will be broken if such other party be incompetent to transfer.

The following have been held to be breaches of the covenant for quiet enjoyment.

A notice to tenants to pay rent to an adverse claimant,
A claim in respect of arrears of quit rent.
An obstruction of a necessary right of way.

A wrongful claim or eviction by the covenantor or his representatives, but a wrongful claim or eviction by a stranger is not a breach.

The covenant for further assurance will not entitle the purchaser to & covenant for production of title deeds, nor will it entitle him to require the vendor to do or procure to be done an unnecessary act.

But a purchaser, who has delivered up all the title deeds to a pure chaser of part of the lands, may require the party entering into the covenant for further assurance to execute a duplicate conveyance, in such a case or in the event of the original conveyance having been burnt, or may require the removal of a judgment or other incumbrance.

The usual covenants for title will enable a purchaser to recover the value of the land and buildings erected thereon subsequent to the purchase.

On sales by the Crown the purchaser will not get any covenants for title.

AIndex to Precedents in Conveyancing and to common and

Commercial Forms. By WALTER ARTHUR COPINGER, of the Middle Temple, Barrister-at-Law. London : Stevens and

Haynes. We hare not given above all that appears on the title page of this work. The forms are “ arranged in alphabetical order, with subdivisions of an analytical nature, together with an appendix containing an abstract of the Stamp Act 1870, with a schedule of duties, the regulations relative to, and the stamp duties payable on, probates of wills, letters of administration, legacies and successions.” The idea of an index of precedents was a good one; an index is always useful, and well done cannot fail to be an acquisition. But we do not see why the stamp and succession duties were appended to this book in particular. The connection between stamp duties and precedents is not so clear as to make their union as obriously natural as it should be for the purpose of publication in a single volume. However, there they are, and the increase in the bulk of the volume not being great, we are not disposed to complain. There will probably be a difference of opinion as to the way in which the work is done, and for our own part, judging from the style of the preface, we consider that Nr. Copinger possesses very small power of analysing satisfactorily. We always doubt a man's power to analyse when he cannot write intelligible English. Lawyers using books of forms do not ordinarily read the preface, but this passage should be read carefully : “Where a further division than the analytical subheading has been thought desirable, and yet the precedents succeeding bave not been sufficiently distinct in character from, and unconnected with, those preceding to justify a definite subheading, a space has been left, which, it is hoped, will afford adeguate indication of the detachment of the former from the latter.” One other fault we have to find. Why was it thought necessary to place in distinct lines every reference where a common form could be found ? For example: 137. Common form of a bail bond

1 Crabb, 514. 138. Ditto

Ship, 329. 139. Ditto

Hurl. 119. How much better it would have been to give a little more space to the references, and put it thus: 137. Common form of a bail bond 1 Crabb. 514; Ship. 329; Hurl. 149.

Under the head “ Landlord and Tenant-Notices” we find quite a picturesque family of “ dittos," which might have been arranged as suggested, with great saving of space.

We have already spoken of the business of analysis, and on looking into the work we think it might have been altogether dispensed with. We should hesitate to rely upon the accuracy of the workman were it intended that we should do so—which it


In cases where the purchaser is entitled to a covenant for production of deeds, it is desirable that such covenant should be entered into by a sepa. rate deed, unless the documents covenanted to be produced are recited or appear upon the face of the conveyance, and the same rule applies to any covenant entered into with a view of providing for a defect in title which can be kept off the face of the conveyance.

On the purchase of a reversionary interest the succession duty payable on the reversion falling into possession should not be overlooked ; unless otherwise provided for as between vendor and purchaser, the purchaser must pay the duty.

When the conveyance is by tenant for life and remainderman the usual course is for the duty to be compounded for under the Succession Duty Act, or the remainderman enters into a covenant to indemnify the purchaser therefrom.


Precedents of Leases. By JOHN ANDREWS, B.A., Solicitor.

London: Shaw and Sons. Tuis volume, Mr. Andrews tells us, is a practical book of short precedents of leases and common forms, such as can be readily used in a solicitor's or agent's office. “The precedents are taken from those in constant use, they have all been carefully revised, and many of them settled by counsel.” Appended to the forms are notes which appear to be thoroughly well done without being ambitious, and supply a useful commentary. The book is what it pretends to be, accurate and practical.

The Bar Ecamination Journal. By Messrs. TYSSEN and Wilson (Butterworths) is a collection of the questions set at Trinity Term 1871, with answers. Such works only aid in cramming. They cannot be useful in any other respect whatever.


some time past, with specnlation damped by the unfavourable weather, and the continual discussion of the effects which must be produced upon, the working expenses by the general rise in prices of material and labour, has indicated that but little was wanted to cause a decline in all descriptions. That little has come, and a sharp fall has already occurred. The principal charges are a decline of 3 in Great Northern A”; of 2 in North Eastern Consols; of 2 in Manchester and Sheffield ; of 2 in Cale. donian, Great Northern, and Great Western ; and of 14 in London and North Western, &c.

The changes for the week in the prices of Foreign Stocks are mora equally divided, the principal rise of Two Per Cent. being in Paraguay on the receipt of advices from the River Plate to the effect that the protec. torate treaty has been ratified, the boundary question settled, and the con. sideration of the war expenses postponed virtually sine die. Turkish descriptions have been in good demand, and are from } to 14 per cent. better. French, Italian, Peruvian, and Spanish, on the other hand, have been dull and are lower, the last-named, owing to the reported determina. tion of Senor Carnacho to equalise the budget, regardless of any sacrifices for the present; there being, according to his statement, no alternative between a true adjustment of the budget and a suspension of payments. How the former is to be achieved consistently with continuing to pay the coupons, it is difficult to conceive, and the prospect for the bondholders is consequently not cheerful.

In the minor markets, Anglo-American telegraph stock is 4 lower for the week ; and Phosphate Sewage 8. On the other hand, Telegraph Construction shares are 1 higher, and Hooper's Works, i.

There have been no bullion operations this day at the Bank, and a fair demand for discount.

The latest quotations for British Funds are as follows: Consols, for money, 921 to 92%; ditto May Account, 92% to 93 ; Reduced, 917 to 914; New Three per Cents., 91% to 91.1; Exchequer Bills, 4s. to 9s. prem.; India Five per Cent. Stock, 110 to 110.) ; ditto Four per Cent., 102 to 103; ditto Enfaced Paper Four per Cent., 961 to 97; ditto Five and a Half Per Cent., 108 to 109; Metropolitan Three and a Half per Cent., 96, to 96%; and French Rentes in this market, 554 to 55..

The latest price of French Rentes received from Paris was 55f. 82c. Market heavy.

In the market for American Securities, the United States 5-20 Bonds of 1882 are marked 92 to 93; ditto, 10-40 Bonds, 89 to 894 ; Atlantic and Great Western Bonds, 43 to 44; ditto Debentures, 52 to 53; Eries, 53 to 54; Illinois, 1095 to 110%; and United States Funded Loan, 90% to 901.

In the Railway Market the prices are :--Caledonians, 116) to 117; Great Eastern, 51% to 52% ; Great Northern, 135 to 135); ditto, A, 156 to 157;

Great Western, 110% to 1114; Lancashire and Yorkshire, 1561 to 157; London and Brighton, 82 to 82); London, Chatham, and Dover, 261 to 27; London and North - Western, 152 to 1521;. London and South-Western, 107 to 108; Manchester and Sheffield, 75 to 75; Metropolitan, 675 to 68 ; ditto District, 31; to 31; Midland, 142; to 143; North British, 66 to 66.; North Eastern Consols, 171 to 172; SouthEastern, 973 to 98%; ditto deferred, 76to 77.*; Grand Trunk of Canada, 191 to 191; Great Western of Canada, 197 to 191; Antwerp and Rotterdam, 181 to 19); Great Luxembourg, 18% to 183; and Lombardo Venetian, 18% to 181.

The prices of the principal Foreign Stocks are recorded thus : Argentine, 1868, 97 to 97}; do., 6 per cent., 1871, 92 to 93; Brazilian, 5 per cent., 1865, 96 to 96%; do., 5 per cent., 1871, 95, to 95); Egyptian, 7 per cent., 1868, 88} to 88% ; do., Viceroy Loan, 91 to 93 ; do., Khedive Mortgage Bonds, 784 to 78}, ex. div.; French Morgan 6 per cent. Loan, 97% to 98, ex. div.; do., National 5 per cent. Loan, 6} to 6 pm. ; Italian of 1861, 68} to 683; Mexican, 151 to 15); Paraguay 8 per cent. Loan, 90. to 91 ; Peruvian, 5 per cent. 1865, 100% to 1014; do., 6 per cent. 1870, 813 to 82 ; Russian 5 per cent. 1871, 913 to 92}; do., Nicolai Rail. Bonds, 761 to 77}; Spanish, 30.2 to 30%; do. 3 per cent., 1871, 30g to 30%; do. Quicksilver, 80 to 82 ; Turkish, 5 per cent. 1865, 534 to 53% ; do. 6 per cent. 1865, 69 to 70; do. 6 per cent. 1869, 60. to 61, ex. div.; do. 6 per cent. 1871, 741 to 75.

In the Telegraph Market, Anglo-American Stock is quoted at 117 to 119 ; Anglo-Mediterranean, 175 to 178; British Australian, 94 to 93 ; British Indian Extension, 12 to 124 ; ditto Submarine, 10% to 11 ; Chinas, 9 to 9.; Cubas, 8 to 85; Falmouths, 11% to 113: Great Northern, 151 to 16 ; Marseilles, Algiers and Malta, 87 to 94; Mediterranean Extension, 6 to 7; French Cables, 221 to 221; Reuter's, 103 to 114; and West India and Panama, 64 to 6.1.

In miscellaneous shares the prices are as follows :-Credit Foncier of England, 54 to 5 ; Crystal Palace, 22 to 24; General Credit and Discount, 23 to 2% pm.; International Finance, « to pm.; Hooper's Telegraph Works, 3 to 34 pm. ; Hudson's Bay, 10% to 105; India Rubber and Gutta Percha, 44 to 46; National Discount, 13. to 13%; Telegraph Construction, 32, to 32% ; Royal Mail Steam, 95 to 98; Native Guano, 21 to 23; Phosphate Sewage 40 to 42; New Sombrero Phosphate, 87 to 9; and Phospho Guano 104 to 113.

[ocr errors]

CITY, THURSDAY, APRIL 4. The circumstance which calls for the first place in our remarks is the rise in the Bank of England rate of discount 'this day from 3 per cent., at which it was fixed on the 14th of last December, to 3. Last week's Bank return, examined together with its predecessors since the opening of the year, indicated pretty clearly what might be looked for ere long, and the reported calling in of loans by the Bank furnished additional evidence to arouse the suspicion which was manifested in the minds of operators in the Stock Markets this morning The general impression seems to be now that gradual advance in the value of money may be looked for, and the first movement which indicates that such impressions are about to be realised, naturally operates at once in depressing the value of public securities. Since the conclusion of the Easter holidays, business has been restricted, but until this morning, the tendency in those descriptions in which the changes have been worth noticing has been favourable. It is obvious that in the market for English Railway Stocks, for example, where the contango rates play so important a part in influencing price, especially when, as is the case, large amounts of these stocks are in favour, and must inevitably come out with the rise in the value of money, depression must follow the movement referred to.

In some quarters the action of the Bank is looked upon as precautionary measure than one actuated by the necessity for defending its till; as to this, however, the return to be published to-morrow will show. The distribution of the dividends may exercise a temporary effect, but it must be borne in mind that when these are paid the Bank loses control to such extent of the open market, while outside lenders will be inclined to employ the money only at short call, awaiting a still further advance. The fall of to-day in the English Government Funds has nentralised the previous rise, and the price is now the same as when we last wrote.

In the American market Eries, in which the chief business has again been transacted, are higher for the week. The extreme prices having been 57 and 43. 'Atlantic and Great Western bonds are } lower.

The fall of to-day in Home Railway stocks has followed as a matter of course the rise in the value of money. The position of this market for


more a

NOTES OF THE WEEK. either of them in connection therewith, into a and that the bill must therefore be dismissed, but,

stream called the Town Beck, at any point where under the circumstances, without costs. V.C. WICKENS' COURT.

it flowed through the plaintiff's land, for damages, Solicitors for the plaintiff, Gray, Johnston, and

and payment of the costs of the suit.” The ques. Mounsey. Wednesday, March 20.

tions were, whether the defendants were legally Solicitors for defendants, Williamson, Hill and Askew v. THE SEWER AUTHORITY OF ULVERS- justified in carrying out their works as they had son.

done, and whether there was such a nuisance or
injury therefrom to the plaintiff or his property

Saturday, March 23.
Nuisance-Pollution of stream-Sewer authority as to call for the interference of the court.
Greene, Q.C. and Langworthy, for the plaintiff.

Re THE INTERNATIONAL CONTRACT COMPANY This suit was instituted by the plaintiff, a land- Bristowe, Q.C. and Williamson, for the defen

(LIMITED) (HUGHES's CASE). owner of Ulverston, to restrain the defendants dants.

Company-Liquidation-Company's debt-Claim "from discharging any sewage or foul matter The VICE-CHANCELLOR decided that the acts

for interest-Claim disallowed. Whatever from any sewers constructed by or be- of the defendants were not illegal ; that the plain- This was a motion on behalf of the official liquilonging to the defendants, or either of them, or tiff had failed to prove a sufficient nuisance or in- dator of the above company to vary the certificate from any tanks or works of the defendants, or jury to warrant the court granting an injunction, of the chief clerk under the following circum

« EelmineJätka »