Page images
PDF
EPUB

authorities who seem to give them a preference for legal appointments connected with the navy, we are not at all sorry that such flagrant elementary blunders were made in the course of the Megpra court martial. It seems almost a contradiction in terms to say Captain So-and-So, barrister-at-law : the Rev. So-and-So, plumber and glazier, would be scarcely less ridiculous. We do not say that young officers may not abandon the service and become excellent lawyers, but the man of maturer years should think twice before making the change, and Government should, as Mr. GLADSTONE said with reference to the reform of the House of Lords, think not only twice but thrice before they employ them in the public service.

a

We are informed that the Hon. G. DENUAN, Q.C., the arbitrator appointed to determine the dispute between Mr. MACLEOD) and the Crown in respect of the preparation of Specimen Digests of the Law, has awarded Mr. MACLEOD the sum of 6251., making the total remuneration received by Mr. MACLEOD equivalent to 7501., per annum for two years' work. The arbitrator has assigned no reasons for his award, and the Government has refused to allow him to do so. Mr. MACLEOD, however, conceiving that the payment made to him, being as a matter of fact at the rate of two guineas a day for work extending over ten hours a day, is wholly inadequate, and as he is precluded from having the award reviewed by a court of law, intends to present à petition to Parliament in order that there may be a public inquiry. Mr. DENMAN would appear to have disregarded the damage resulting to the gentlemen employed from the abrupt termination of the engagement; but apart from that, it seems truly monstrous that the highest legal ability short of the Bench should be expected to undertake a laborious work of national importance for less than a third of the pay of a Parliamentary draughtsman. The Benchers of the Inner Temple have been first in the field with the new regulations respecting compulsory examinations. A notice has been posted, dated Nor. 17, intimating that the four Inns have agreed to call no students to the Bar unless they have passed a public examination. It is also intimated that, with a view to this examination, a course of lectures will commence early in January. There is some doubt in the minds of present students whether this notice is retrospective. We apprehend that it is not. We are unable to statu whether the lectures in the different Inns will go on contemporaneously with the lectures appointed by the Council of Legal Education ; but we should imagine that the latter will be abandoned, and each Inn be left to educate its own members. The following is the notice referred to:

The four Inds of Court having determined that there shall be a compul. sory examination of students for the Bar before they are called to the Bar, or allowed to practise under the Bar, the Masters of the Bench desire to inform the students of this Inn, that in order to assist them in preparing for such examination, they have instituted a course of instruction, of which every student of this Inn may, if he pleases, avail himself. Tho course will commence on the 11th Jan. next. There will be three Legal Terms, and the payment will be one guinea a term for each student attend. ing a class.

The Benchers of the Inner Temple wish to appoint four gentlemen to instruct the students of the Inn in-Jurisprudence and Civil and International Law, Constitutional Law and Legal History, Equity and the Law of Real Property, Common Law. The terms and duties of the appointments may be obtained at the Treasurer's office, Inner Temple. Candidates are requested to send in their applications on or before the 7th Dec. next,

RESOLUTIONS IN LIQUIDATION. CONSIDERING the very large extent to which the liquidation clauses of the Bankruptcy Act 1869 are being made available, it is clearthat the procedure at the meetings of creditors should be carefully regulated according to the spirit and letter of the Act. A most important part of this procedure has reference to the resolutions of creditors. We will state shortly what directions are given by the Act. The resolution referred to in sect. 125 is a special resolutoin, which is to be passed by the general meeting of a debtor's creditors summoned by him, and with regard to this it is said, by clause 14, that in calculating a majority on a special resolution for the purposes of this section, creditors whose debts amount to sums not exceeding 101. shall be reckoned in the majority in value, but not in the majority in number. By clause 4 the duty is imposed on the registrar to inquire whether the special resolution has been passed in the manner prescribed by the section, and on being satisfied, he is to register it. The rule (275) applicable to the section of the Act, says that the special resolution shall determine whether the affairs of the debtor are to be liquidated by arrangement and not in bankruptcy, or whether any, and what, composition shall be accepted in satisfaction of the debts due to the creditors from the debtor, or it may reject either of such modes of arrangement. It concludes thus "Only such resolutions as are reduced into writing and are signed by or on behalf of the statutory majority of the creditors assembled at a meeting, shall be taken cognisance of by the court, but the signatures of such creditors may be subscribed subsequently to the making, but prior to the filing or registration of the resolution.” Upon this rule doubts arose as to the validity of a resolution not at the time of being passed assented to by a particular creditor, though subsequently signed by him, and the point has been decided.

The case to which we refer is well known, Er parte. Pooley, re Russell (23 L. T. Rep. N. S. 275; L. Rep. 5 Ch. App. 722). There, a large creditor attended by proxy (rule 85), and opposed resolutions for a liquidation by arrangement. Without him the requisite majority did not assent to the resolutions. He subsequently signed them, and the Chief Judge in Bankruptcy ordered them to be registered. On appeal the direction of the Chief Judge was sustained. Lord Justice James remarked that “the Act does not say that the resolutions must be passed by a show of hands, nor initeed that the votes must be given at the meeting at all," but the creditors vote when they affix their signatures to the resolutions. It was held incidentally that because resolutions contained certain conditions upon which the future property of the debtor was to be realised, this fact did not make them extraordinary resolutions, and that the matter was proper to be contained in a special resolution.

We last week reported an analogous case, containing somewhat more elaborate directions as to the framing, passing, and registration of resolutions-Ex parte (ride, ie Horsley (25 L. T. Rep. N. S. 4:0). This is rather more important than E. parte Pooley, because the resolutious were refused registration by a County Court Judge, ordered to be registered by the Chief Judge, and ultimately refused registration by the Lords Justices. The rock the creditors sp upon in Ex parte Orde was a resolution for adjournment. That resolution was passed ostensibly by a majority, but as a matter of fact this was not so, the original meeting being informally adjourned; the County Court Judge and the Lorils Justices held that the resolutions passed at the adjourned meeting were invalid. It was contended on the part of the trustee appointed under the liquidation that it was not necessary that a resolution merely to adjourn a meeting should be passed with all the formalities required for the resolutions referred to in the Act and the Rules. And that was the entire question. Rule 293 says that “where any resolution is required to be passed, or any act to be done by the creditors present or represented at the meeting, the majority required for the purpose shall, in the absence of any enactment to the contrary, be a majority in value of the creditors present or represented thereat.” “And the Lords Justices construed that to mean that nothing but affirmative evidence that the majority is a proper majority, according to the statute, can give the resolution validity. Then follows the question what must be the evidence, and Sir TV. Russell's case comes in to show that the only admissible evidence is the signatures of the creditors present or represented at the meeting. “The Registrar,” said Lord Justice James, “is to see that the persons assenting thereto do constitute a majority in value of the creditors present or represented thereat, or a majority of two-thirds, as the case may be, and there is no duty whatever cast upon the registrar of ascertaining whether any other persons present voted against or expressed themselves neuter, or as not desiring to vote at all.” The papers alone have to be looked to, and no regard to be paid to what took place in the room

An objection was started with reference to clauses 7 and 8 of sect. 16 of the Act, which speaks of a “majority of the persons present and voting on such resolution," which it was urged were inconsistent with the rules, which say that the resolution must be signed in writing by persons present at the meeting in person or by proxy. “ It seems to me,” said the Lord Justice, “there is no real inconsistency between the statute and the rules. There is no definition in the statute of the meaning of the words 'voting on

Mr. REDFIELD, the American lawyer, in a paper on Law Reform in the United States, makes some important suggestions founded on his own experience. He says: My own experience of the practical working of attempts at codification has been restricted to these revised statntes. That process was resorted to in the State of Vermont, while I was connected with the Supreme Court of that State. The result did not impress me favourably in regard to any actual improvement in the statutes, by reducing them to a formal code, either in regard to certainty or completeness. The Commissioners for presenting the draught of the revision consulted the statutes of other States, and incorporated many new provisions into their report, and altered some of the existing ones, and changed the phraseology in many instances, either for greater certainty or symmetry, but in almost every instance produced many times more uncertainty than they cured, and in some instances resorted to such refinements of language, as might seem more suitable to other writings than to the statutes of a State. The highest judicial tribunal of the State was, more or less, occupied for many years in removing the uncertainties created by these 'improvements in language. I am thoroughly convinced that after a statute has received repeated judicial constructions, if it is intended to be substantially preserved, it is not wise to change its phraseology, however much it may seem to increase its clearness or beauty. I think, therefore, that while revisions or concentrations of the statutes of a State after they become considerably numerous, is of the last importance, for the convenience of those who desire to consult them; it should, nevertheless, so far as practicable, always be done with the strictest adherence to existing phraseology."

or

such resolution,' and it is in my judgment quite within the proper THE OUSTING OF COMMON LAW JURISDICTION IN functions of the rules and regulations made under the Act of

COUNTY COURTS.
Parliament to define what shall be the meaning of these words.”
Consequently, resolutions to be valid must be passed by a majo-

We propose to return to the discussion of the question raised by rity of those present or represented at a meeting, and for the

Mr. Pitt TAYLOR at the Woolwich County Court, namely—Does purpose of estimating the majority those who withdraw their

the admiralty jurisdiction which has been conferred upon cerproofs, though remaining in the room, cannot be taken into calcu

tain County Courts oust the old common law jurisdiction ? Nr. lation, though they do not vote against the resolution. “It is not

TAYLOR says that in admiralty causes- - which may now arise necessary that there should be a vote of non-assenting creditors to

within the body of a county by virtue of 3 & 4 Vict.c. 65—a County show that they did not vote for the resolution” (per James, L. J.)

Court not having admiralty jurisdiction has no jurisdiction at And the learned Judge says to creditors: “If you do not want to

common law. vote, if you do not want to be considered as voting on the resolu- Whether this is correct can only be ascertained by examining tion, withdraw your proof from the chairman and retire, not retire the bases of the concurrent jurisdiction of the Superior Courts of personally, but retire from voting on the resolution. Withdraw common law and equity in causes which may be brought in the your proof, and allow the thing to be decided by the others.” Court of Admiralty, and in the first place it is to be observed And the matter is tersely put by Lord Justice Mellish that the that the jurisdiction vested in the Court of Admiralty in causes voting on a resolution for adjournment, as in all other resolutions, cognisable at common law is not substitutionary, but supplemenmust be evidenced by a resolution in writing, which the court can tary and cumulative. Take first the early Act of the present look at, and must be signed by the proper statutory majority of the reign, extending the jurisdiction of the High Court (3 & 4 Vict. creditors.

c. 65). That Act conferred upon the court many of the powers

given to the common law courts in matters of procedure, and also THE LAW OF LIBEL IN THE QUEEN'S BENCH.

gave it jurisdiction over claims of mortgagees, and questions of title in certain specified cases.

But the 23rd section says, RESPECT for the functions of juries seems to have led two of the

“Provided always, and be it enacted that nothing herein conJudges forming a majority of the Court of Queen's Bench to assent tained shall be deemed to preclude any of Her Majesty's courts to what is called by a third Judge a somewhat dangerous exten- of law or equity now having jurisdiction over the several subsion of the law of libel. The case of Jenner and another v. ject-matters and causes of action hereinbefore mentioned, from A'Beckett will be found in our reports to-day, and by a reference to

continuing to exercise such jurisdiction as fully as if this Act had it it will be seen that Mr. Justice Mellor and Mr. Justice Hannen not been passed.” The fact that this Act is not silent, but affirmaconsider that to abuse the title given to a marketable article by tively saves the jurisdiction of the ordinary courts of common law calling it silly, slangy, and vulgar, is not so clearly an innocent and equity, is important upon the point under discussion. But the exercise of the freedom of the press that the printer of the abuse argument in favour of the common law jurisdiction being reshould be exempt from the operation of the minds of a jury in the tained strengthens as we go on, for the Admiralty Court Act consideration whether such abuse was a reflection upon the plain- 1861, provides a jurisdiction in admiralty over any claim for tiffs as to the way in which they conduct their business.

necessaries supplied to any ship elsewhere than in the port to But before the decision of the majority of the court is con

which the ship belongs, unless it is shown to the satisfaction of the demned, and there is a strong feeling against it, the fact that it

court that at the time of the institution of the cause any owner was giren on demurrer should be borne in mind.

Libel or no

or part owner of the ship is domiciled in England or Wales. libel is peculiarly a question for the jury, and until a jury has Now the object of this enactment, adding as

adding as it does given an opinion it is of doubtful expediency for the court in a remedy in rem to the remedies at common law against banco to interfere and say that the question shall not go

the master owner, is pointed out by Dr. Lushingtou before a jury at all. In Campbell v. Spottiswoode (8 L. T. Rep.

in the case of The Pacific (10 L. T. Rep. N. S. 542). His N. S. 201), which is cited as containing doctrines applicable to

Lordship said that the reasons of the enactments (3 & 4 Vict. Jenner v. A Beckett, the jury had already found their verdict in

and 20 Vict.) seemed to be plain: “A real action in the Admiralty favour of the plaintiff, and it was endeavoured to obtain a rule to Court is given against a foreign vessel in all cases, because the enter the verdict for the defendant on the ground that the jury owner is assumed to be beyond the jurisdiction, and vice versâ it found that the writer believed his statements to be true. is denied against a British vessel where the owner is within the The rule was refused. In that case there was not a mere

jurisdiction, or for a similar reason where the necessaries are charge against the plaintiff that his conduct was foolish supplied to the home port, because the presumption is that the and absurd; base and sordid motives were assigned. It supplies were made upon the personal credit of the owner who can only be inferred from the judgments in that case that apart

would there be known and trusted. In other words, the remedy from such element in the article, the court would have held that against the ship is given only where a personal action against the there was no libel. Chief Justice Cockburn said, “ You have a owner would be fruitless, and then only when the supplies have perfect right to canvass a man's public conduct and to say that it not been made upon his personal credit.” The statute was remewas foolish and absurd, and that the effect of the subscription dial; it gave a remedy which had not existed before, namely, which the plaintiff was asking the public to contribute was to put

against the ship, but the common remedy against the owner is money into his own pocket.” Mr. Justice Blackburn is emphatic strictly maintained. The same remark applies to causes for that the question what the language actually imputes is for the

damage to cargo instituted by the owner or consignee or assignee jury.

of any bill of lading of goods carried into England and Wales But on the general question--and it is becoming an important one-how far imputations may be made on the way in which a We now proceed to the actual case, that is to say, damage by tradesman carries on his business, we think we perceive a dispo- collision. By sect. 7 the High Court of Admiralty has jurisdiction sition on the part of the Judges to protect tradesmen in carrying over any claim for damage done by any ship; “ship” being on the keen competition which pervades trade.. We may refer to interpreted (sect. 2) to mean any description of vessel used in Mr. Justice Brett's ruling, upheld in the Common Pleas, in the case navigation not propelled by oars. There is nothing in the Act of Latimers. The Western Morning News Company, where reflections depriving the courts of common law and equity of their ancient upon a newspaper proprietor's mode of obtaining advertisements jurisdiction over such canses, and as a matter of practice such were held libellous, although the charge did not amount to one of causes bare been repeatedly instituted, and where questions conobtaining money by false pretences. This element of personal cerning jurisdiction have arisen, they have related to the limits misconduct, superadded to the reflection upon the nature of a of admiralty rather than of the ordinary jurisdiction, the Court tradesman's goods should, we apprehend, go to make an action- of Queen's Bench having recently decided that the Court of able defamation. That detraction of goods alone will not do with- Admiralty has not jurisdiction over a claim for personal injury out special damage has been distinctly held. In Young v. Macrae and death arising under Lord Campbell's Act, on the ground that (32 L. J. 6, Q. B.), Chief Justice Cockburn said: “The defendant it did not come within the meaning of the word “damage" (Smith is alleged to have falsely and maliciously published a disparaging v. Brown, 24 L. T. Rep. N. S. 808; L. Rep. 7 Q. B. 729). It might be comparison between the oil manufactured by the plaintiffs, and said that where the subject matter of the suit was damage, beyond that which he was advertising; but that allegation may merely dispute, within the meaning of the Admiralty Court Act, a court mean that the part of the circular which relates to the American of common law would not have jurisdiction. But this is by no oil was false, and that it was not so good as represented," and he means a correct inference, for although the Admiralty Court is given held that the action was not maintainable. That was a demurrer, jurisdiction in cases of damage by collision, thus enabling a party and it being a mere slander of goods without any sufficient special damnified to arrest the ship, neither directly nor by implication damage, the demurrer was allowed. The importance of reflection are the ordinary tribunals deprived of their jurisdiction over the upon the personal character of a tradesman will be seen by looking personal action. And the rule is proved by the exception conat the opening of the Lord Chief Justice's judgment in that case, tained in sect. 13 of the Admiralty Court Act 1861 (20 Vict. c. 10), in which he said that if special damage followed a disparaging which provides in the same way as the Merchant Shipping Act reference to an article sold by a tradesman, even if no reflection is 1854 provides, with reference to the Court of Chançery, that made upon his character, trade, or profession, he could not hold whenever any ship or vessel, or the proceeds thereof, are under that an action would not be maintainable.

arrest of the court, the said court shall have power to stop all On this view of the case the majority of the Court of Queen's actions or suits in relation to the same subject matter: (sect. 514 Bench may reasonably have felt more satisfied that the matter of 17 & 18 Vict. c. 104.) In the case of Milburn v. The London should be settled before the most appropriate tribunal-a jury: and South-Western Railway Company (23 L. T. Rep. N. S. 418;

[ocr errors]
[ocr errors]
[ocr errors]

Owner.

L. Rep. 6 Ex. 4), the Admiralty Court made an order to stay all any respect too stringent ? We cannot say that they are. If actions having reference to the same matter, a collision between each attorney keeps but one clerk for criminal business, a single two ships. The only statutory enactment binding the common short affidavit for his identification will suffice. The retainer in law courts to stay proceedings, is sect. 226 of the Common Law writing by the client is only what every solicitor requires in civil Procedure Act 1852, which refers only to “any writ of injunc- business; whilst the signature of the barrister in certifying the tion, rule or order of either of the Superior Courts of law or equity receipt of the fee is supposed to be now given in every case. In at Westminster," and the court held that the order of the Court the latter direction there is the same field

for disreputable proceedof Admiralty was not within that section, and refused to exercise ings; but Mr. Avory has done his utmost to protect the Bar, the powers which it possessed at commoa law.

and it will be greatly to the advantage of all practising members This being the state of the law concerning the jurisdiction of if they will accept his assistance and insist upon bona fides in all the superior courts, we have to consider whether the Legislature their transactions. The present is an excellent opportunity for by the County Court Admiralty Jurisdiction Acts intended to turning over a new leaf in criminal practice, and it is really in the abridge the subjects of County Court jurisdiction by taking away hands of the Bar to render the reform effectual and complete. from every court, not an admiralty court, but being within the district of a court having admiralty jurisdiction, a part of its AS TO EASEMENTS ARISING ON THE DETERMINATION original common law jurisdiction. The words of sect. 5 of the Act of 1868 are very precise, enacting that no County Court,

OF UNITY OF POSSESSION. other than the County Court appointed to have admiralty juris

A DOUBT often occurs as to what easements attach to several tenediction, shall have jurisdiction within the district of the court so ments when their unity of possession is destroyed. appointed “in any admiralty cause." Construed strictly, this The well-known principles—"that a grant of property carries may be said to deprive courts not having admiralty jurisdiction, every right necessary for the enjoyment of the property,” and of jurisdiction in every cause which comes within the definition " that no one can derogate from his own grant”-serve in a great of admiralty causes contained in the four clauses of sect. 3, and it measure to solve the question; but it presents itself in different might be said that the proviso at the end of sect. 5 supports this aspects :view; that proviso being “provided that all admiralty causes at 1. Where the two tenements are disposed of by the owner that time pending in any County Court within that district may be simultaneously, as by devise ; continued as if no such Order in Council had been made." The be- 2. Where one only is conveyed away, and, ginning of the section is, however, " from and after the time speci. (a) An easement is claimed in respect of the tenement con. ħed in each Order in Council,” so that the proviso may be taken to

veyed, over that retained ; refertoa transfer of admiralty jurisdiction. Putting the proviso aside (6) An easement is claimed in respect of the tenement retained, therefore, and looking at the extension of the definition “ admiralty

over that conveyed. causes ” by sect. 2 of the Act of 1869 (32 & 33 Vict. c. 51), we Of the cases lately decided, Polden v. Bastard (13 L. T. Rep. feel that it is difficult to come to the conclusion that County Courts N. S. 441) illustrates the first alternative. There, a testator not having admiralty jurisdiction are not to have any jurisdiction possessing two houses, devised one of them as now occupied by at all as regards matters maritime, whether they be exclusively A. B.,” to C. A. B. and his predecessors had been in the habit of admiralty suits, that is, suits in which an admiralty court alone can using the pump belonging to the other house; but it was held that do justice by giving a remedy against the ship, or ordinary the right of using the pump was not given to C., inasmuch as it contracts as for necessaries supplied to a ship on the credit of the was not an easement continuous, or of necessity. It is presumed

What we believe the Act means is simply this, that no that a right of way is necessary, but not continuous; and that a County Courts, save those which are appointed by an Order in right to a watercourse is both continuous and necessary. Council

, shall have admiralty jurisdiction, but that where there Watts v. Kelson (40 L. J., N. S., 126, Eq.) was as follows: The is concurrent jurisdiction in the Superior Courts it shall also exist owner of two closes conveyed away one of them," with all waters, in the County Courts. In opposition to this view we have the &c., thereunto belonging." There was at the time a natural opinion of a shrewd and able County Court Judge. We have watercourse through the close retained, which the owner had argued the question by analogy, and without an interpretation carried by an artificial pipe down to some cattle sheds upon the of a Superior Court it is impossible to express a decided opinion close sold; and it was held that the right to the watercourse passed one way or the other.

either under the general words in the conveyance, or by implied grant; and, further, that the fact of the purchaser being about to

build houses in lieu of the cattle sheds, and to apply the stream to THE CENTRAL CRIMINAL COURT.

the purposes of the houses, made no difference, as he had a right to THE CLERK OF ARRAIGNS has been constituted, or has constituted dispose of the water in any way he liked, after it had once come on himself, a quasi public prosecutor. This is an important step, and to his land. will interfere to some extent with the employment of attorneys in In Pyer v. Carter (1 H. & N. 916), the owner of two adjoining criminal cases, and, unless Mr. Avory is very circumspect, may houses sold one under which a drain existed for the use of the cause some irritation amongst the members of the Bar. other: he subsequently sold the remaining one, and the purchaser obtain our information from the newspapers, where we find it of it claim to use the drain. One point attempted to be made in stated that he “promises, on the application of any prosecutor, and the first purchaser's favour was, that he had had no notice of the in the event of the case being a proper one, to instruct counsel to easement claimed, and, therefore, that he ought not to be subjected condụct it.” If this plan be generally followed, it will cause some- to it. It appeared that another drain could have been made for what of a revolution in Old Bailey practice. But any revolution the use of the house last sold, which would not have passed must produce an improvement.

through the other premises; but judgment was given against the Now, as to the other regulations. We are informed that within first purchaser, inasmuch as the easement was one of necessityand without the Sessions-house in the Old Bailey, placards in large necessary, not because no other drain could have been made, but type have been posted-first of all to warn prosecutors, witnesses, necessary having regard to the state of things existing at the and policemen, that any persons detected in making false repre- sale. sentations to the taxing officer as to the duration of attendance, In Suffield v. Brown (9 L. T. Rep. N. S. 192 and 627), a dock and cost of travelling, employment of attorney, or any other matter, an adjoining wharf had been under the same ownership: the bowwith a view to obtain larger allowances than the facts justify, will sprits of the vessels lying in the dock had usually projected over be immediately given into custody, and prosecuted for attempting the wharf, and indeed, in the case of the largest ships, this was to obtain money by false pretences, and on conviction will be unavoidable. The wharf was sold without any qualification, and liable to be imprisoned for two years; and secondly, to inform the purchaser designed to build a warehouse which would block up prosecutors that the Court and its officers do not sanction, the space where the bowsprits had projected. The owners of the but expressly forbid, the proceedings of certain persons dock attempted to have him restrained from so doing, but unsucfrequenting the precincts of the Old Bailey who solicit cessfully, on the ground that the sale of the wharf had been unto be allowed to conduct prosecutions and instruct counsel conditional and without reservation. Lord Westbury, in giving without cost to the parties. Then, as to procedure, each attorney judgment, based his decision on the principle that no one can before obtaining the fees from the taxing officer, must swear an derogate from his own grant, and remarked that, according to affidavit to the effect that he has been duly retained and instructed this principle, Pyer v. Carter was bad law. It will be observed, by the prosecutor, and that he delivered a brief to a barrister however, that the two cases were not exactly similar; in the one, (whose name he will have to give), and paid him a fee of such and the easement claimed was both continuons and of necessity; in such an amount in cash and in respect of that brief. He will also the other, it was neither continuous, necessary, nor apparent. have to produce the written retainer of his client, and the receipt In Ladyman v. Grave (25 L. T. Rep. N. S. 52), a house had been of the barrister, and in each instance to swear that the hand- sold, with windows looking over a piece of lavd of which the writing is that of the person named. This affidavit will be required vendor had a lease for ten years, and of which he subsequently from the attorney personally, and not from any clerk or person on acquired the fee, but the right to the lights had not been enjoyed his behalf. Each of the attorneys practising at the court will also long enough to have become a legal easement. For this reason it have to file an affidavit stating that such and such a person acting was held that the vendor could not be restrained from building on as his clerk is actually in his service, and is paid by salary periodi- the piece of land so as to obstruct the lights. In Suffield v. Brown cally, and not by any commission on business done, nor by an Lord Westbury appeared to attach little weight to the question arrangement to divide profits on such business.

what easements had become absolute before the union of possesThe only question which arises on this is, are the regulations in i sion, guiding himself rather by the presumed intention of the

We

an

parties on the sale; and, in the present case, it might be urged lawyer regarding the whole system of the law of real prothat the judgment should bave depended on the same criterion. perty as offshoot of feudalism, it seems something like The honse was sold with all rights thereto belonging, and it treason to doubt that any English custom connected with cannot be presumed that the purchaser ever contemplated having land is not either directly or indirectly connected with the feudal his lights obstructed, at least for so long as the vendor's lease system, or that in all cases where any local custom exists, gave the latter the control over the piece of land. Probably, how. if it is inconsistent with this theory, that the custom is only a ever, no obligation would attach on the reversion in fee, as the mere local encroachment upon it. Instead of this, it would easement claimed had not become absolute so as to bind third really seem that the local custom is : trace of a system of legal parties, and the vendor himself could not be held to have affected thoughts and ideas which existed long before feudalism was eren that reversionary interest which he did not possess at the time of heard of, and which has even survived it. Yet such seems clearly sale.

the case. We find the scattered relics of a primeval society still Having regard then to the authorities, the following principles existing in this country that point unmistakeably to our descent appear deducible :

from the tribes of Germany, relics of a society that our Saxon 1. If the owner of the two tenements dispose of them simulta- ancestors brought with them before the name of Norman was eren neously to different persons, those easements only will attach heard in England, which have survived through upwards of ten to the several tenements which are continuous or necessary. centuries through the ravages of the Norman and Angevin

2. If the owner sells one of the properties, retaining the dynasties, the feudal system, and even through the yet keener other, such rights will pass with the former as may be necessary, assaults of the destructive legislation of reformed parliaments.” (or perhaps convenient), forothe enjoyment of it in its existing And further, as to the feudal system, he writes, “ The establishstate, or in any altered state which the parties may contemplate at ment of feudalism in this country must have been a slow and the time of sale; c.9., if land is sold expressly for building purposes, gradual process. Notwithstanding the popular idea that William the vendor will not be at liberty to interfere with the lights which introduced the feudal system at once by an express law, modern may be strictly necessary for the new buildings. In Suffield v. research seems to prove that if it did not exist in name, it did so Brown, the counsel for the defendant seemed to admit that,

at least in form and principle, under the Saxons. But for our if the dock bad been sold before the wharf,. the owner purpose, for the origin of the doctrine of separate, as opposed to of the dock might have been entitled to the easement claimed, common ownership, I think we are indebted to the Conqueror.” because it was in some measure necessary for the use of the dock. In these cases, a liberal construction will be made in favour of the

Mr. Bund throws out a suggestion which he thinks will cast

some light on the position of customary freeholds. He observes, purchaser. 3. The owner will not be entitled to any right in respect of the

As already stated, one of the great changes that feudalism property retained, over property sold without any reservation or

brought about was the conversion of what had been common into qualification, except su easements as are continuous and neces.

exclusive property; in other words, to vest the property that

had formerly belonged to the whole community in the lord. In sary, or necessary alone.

technical language, the freehold of the land was vested in

the lord. Hence we find it stated that the soil of all LAW LIBRARY.

the uninclosed or commonable lands of a township is in the

lord. But this rule is not without exceptions; traces of the The Ancient Land Settlement of England. By J. W. WILLIS- earlier state of things may still be found. Manors exist even now BUND, M.A.

where the soil is not in the lord, but belongs to the commoners Can it be considered a matter of importance what was the nature

themselves. It has generally been assumed that the lord had in of our ancient settlement of land 'The prevailing disposition in ?

some way parted with his right to the soil, but no traces as to some quarters is to disregard everything but the wants of a

when and how the transfer took place can be found. It does not portion of the population, whose ideas are communistic, and it is seem an unnatural conclusion to draw, that these cases formed an Fery little use to attempt to rebut arguments advanced by them exception to the general rule; that here the lord never acquired by references to the ancient settlement of land. Mr. Bund, however, the ownership of the soil; the old village community retained their has done this. He has taken the programme of the Land Tenure rights; and that the explanation is, not that by some unknown Reform Association, and then proceeded to give a history of our

cause they have acquired the right to the soil from the lord, but ancient laws. He therein follows what is becoming a general

that in these cases the lord's right never prevailed over theirs." opinion amongst lawyers, that we have attributed too much The whole question of tenure as affected by ancient law is ably importance to the feudal system, on the hypothesis that it was dealt with and many interesting points will be found in Mr. Bund's introduced by the Conqueror.

He says: “ To an English | lecture, though its practical effect or utility is very doubtful.

a

[ocr errors]

NOTES OF THE WEEK. The Solicitor-General (Jessell, Q. C.), Sir R. De Sex, Q.C. and Saunders (of the Common

Baggallay, Q. C., Southgate, Q. C., Collins, C. Law Bar), for the appellant, contended that the COURT OF APPEAL IN CHANCERY. Hall, and Taylor, appeared.

payment of the 871. did not constitute a fraudulent Thursday, Nov. 16.

The LORD CHANCELLOR (affirming the decree preference under the 92r.d section of the Bank. (Before the LORD CHANCELLOR (Hatherley).

of the Master of the Rolls) held that the separation ruptcy Act 1869. They relied upon Ex parte Black.

deed gave Mrs. Welch a power to dispose of all burn; Re Cheeseborough (25 L. T. Rep. N. S. 76 ; PRIDE v. BUBB.

her real estate by will. The bill was therefore L. Rep. 12 Eq. 358); and Ex parte Matthews; Re Married woman-Real estate-Power to dispose of dismissed with costs.

Cherry (25 L. T. Rep. N. S. 276).
by will.
Solicitors, White and Son; Gavriel.

Reed for the trustee.
This was a case of equitable ejectment, in which

Lord Justice JAMES said that he would treat the plaintiffs claimed as heirs and the defendants

Ex parte BOYLE; Re COLLETT.

the question as one purely of fact, and not with as devisees of Margaret Welch, who died, without Bankruptcy Act 1869 — Fraudulent preferenee –

reference to the 92nd section of the Bankruptcy leaving issue, in 1851, in the lifetime of her hus. Bill of sale-Payment out of money advanced. Act of 1869. He was of opinion that Collett paid band. The legal estate in the hereditaments to This was an appeal from a decision of the Chief the 871. under the impression that he would not which the suit related was outstanding, but in Judge, partially reversing a decision of the Judge get the 2001. without doing so, and that, therefore, equity Mrs. Welch was entitled to them for her of the County Court of Somerset, holden at the payment was not voluntary, and did not separate use during the joint lives of herself and Bridgwater. On the 15th July 1870, Collett bor. amount to a fraudulent preference. her husband, with remainder to herself in tail, rowed 2001. from his solicitor, Boyle, on the Lord Justice MELLISH was of the same opinion. remainder to herself in fee; and in 1846 she and her security of a bill of sale. At the same time that He thought it a great misfortune that a question husband separated, and a deed was executed, Boyle handed Collett his cheque for 2001. he pre- of fact of this kind should have to be decided by which was acknowledged by her, and which con sented him with his bill of costs, which amounted three tribunals -- the County Court, the Chief tained a recital that it was agreed that she should to 871., and Collett paid this out of the 2001. Judge, and the Court of Appeal. This arose from hold all real estate to which she or her husband on the 3rd Aug. 1870, Collett filed a petition the County Court judge not hearing the witnesses in her right might be entitled, for her sole and for liquidation of his affairs by arrangement. himself, or having questions of fact tried by a separate use. The deed contained a disposition The property comprised in the bill of sale jory, as he might do. In the present case he of the estate vested in Mrs. Welch for the joint was afterwards sold and paid into court, and thought that the presentation of the bill of costs lives of herself and her husband, and also of other Boyle claimed for the full amount secured amounted to a demand for payment, so as to make hereditaments not affected by the guit; but it by the bill of sale and also to retain the 87l., the payment not a fraudulent preference. The contained no disposition of her estate tail or rever. and the Judge of the County Court allowed decision of the Chief Judge must, therefore, bo sion in fee, in the hereditaments sought to be both claims. The Chief Judge, on appeal, held reversed as to the 871., Boyle to have his full costs recovered. It was contended that a married that the payment of the 871. was voluntary, of the appeal to the Chief Judge, but no costs of woman could not obtain a power to dispose of her and constituted a voluntary preference, and the present appeal to be given. real estate by will, unless she actually conveyed therefore, disallowed the 87l. and gave Boyle Solicitors for the appellant, Reed and Lovell, for it in proper form to such uses as she should by 101. 10s. for his costs. From this decision, which Reed and Cook, Bridgwater. will appoint, and that a mere agreement between is reported under the name of Ex rarte Wrenford ; Solicitors for the respondent, Torr, Janeway, her and her husband, although by deed

Re Collett, (24 L. T. Rep. N. S. 638), Boyle now Tagart, and Janeway, for Carslake and Barham ledged, was insufficient. appealed.

Bridgwater.

pany and

Two plaintiffs.

Saturday, Nov. 18.

directing that, notwithstanding the Vice-Chan. I be inconsistent with this, but they were immaFARHALL v. FARHALL. cellor's order, the defendants were not to unseal terial.

Lord Justice MELLISH was of the same opinion. Administration suit-Executorship account-Mort. the names of their 'customers, or of the prices gage to bank-Sale of mortgaged propertypaid.

The third issue as to whether the payment was Balance still due to bank.

Lord Justice MELLISH concurred.

made voluntarily and without real pressure, was This was an appeal from a decision of Bacon,

Solicitor for the appellants, Reed, Phelps, and wholly immaterial. Real pressure was not the V.C. Richard Farhall being at the time of his Sedgwick, for Sale, Shipman, Seddon and sale, test at all

, a demand being sufficient to prevent a death, in Dec. 1861, indebted to the London and Manchester,

payment from being voluntary, as was held in Re County Bank in a sum of 10001., for which he had Earle, Son, Orford, Earle and Milne, Manchester. therefore, be dismissed.

Solicitor for the respondents, J. E. Fox, for Tempest (L. Rep. 6 Ch. 70.) The appeal must, deposited with them the title deeds of his estate, by his will empowered his execntors, in aid of his

Solicitors for the appellant, Lace, Banner and

Co. personal estate, to mortgage and grant powers of

Nov. 22 and 23. sale of the whole or any portion of his real estate.

Solicitors for the respondent, Dodge and Phipps.

(Before the LORDS JUSTICES.) On application by the testator's widow, who acted as sole executrix, to be allowed to draw on her Ex parte The LLYNVI COAL AND IRON COMPANY ; late husband's account, the bank refused to

Re HIDE.

ROLLS COURT. hononr cheques drawn by her in her personal Bankruptcy Act 1869, ss, 23, 31-Landlord and

Friday, Nov. 17. tenant-ilisclaimer of lease by trustee-Injury THE ACCIDENTAL DEATH INSURANCE COMPANY character, but opened an account with her en. titled "Mr. Richard Farball's executors' account," inflicted by Disclaimer --- Landlord's right of

v. WALFORD. and honoured cheques upon it, signed Mary

proof. Farhall, for erecutors

Plea-Powers of directors-Deed of settlement. of Richard Farhall.”

This was an appeal from a decision of Mr. Regis. Subsequently the execntrix agreed to charge the Llynvi Coal and Iron Company for leave to prove trar Brougham disinissing an application by the The bill in this suit was filed by the official liqui.

dator of the plaintiff company against the late property, of which the bank held the title deeds, for the injury inflicted upon them by reason of the directors of the company and others, and prayed with the current bulance, and deposited other titie deeds with them to secure the sum then due to

trustee in the bankruptcy having disclaimed, under that it might be declared that a certain indenture them and further advances. the 23rd section of the Bankruptcy Act 1869, an

of the 2nd March 1868 was not binding upon the Of the moneys drawn ont from time to time, the bulk was

agreement for a lease between the company company, and that the same might be decreed to

and the bankrupt. applied by the executrix for the personal ex

It appeared that by an

be delivered up to be cancelled. The bill alleged

that the affixing of the seal of the company to penses of herself and her children, and in agreement made in 1863 between the comvarious speculations. The real estate, of which

the bankrupt, the company had such indenture by the directors thereof, was the bank held the title deeds, having been sold, agreed to let to the bankrupt certain shops ad. beyond the powers of such directors, and that and the proceeds thereof being insufficient to joining the premises of the company for ten such indenture was not binding as against the

The defendants, Alfred Smee and satisfy the amount due to the bunk, they applied years, at the rent of 5001. per annum. for leave to prove in the suit against the testator's years after the date of the agreement, the bank. Edward Shirley Kennedy, two of the late directors, general estute for the balance still due to them, rupt, having failed to carry on his business profit. filed a plea, which set forth a clause of the deed

of settlement of the plaintiff company, showing with interest and costs. Bacon, v. c. admitted ably, filed his petition for liquidation by arrangethe claim (see 24 L. T. Rep. N. S. 610; L. Rep. 12 ment, and the trustee disclaimed the agreement the powers thereby given to the directors, and E9., 98), and the plaintiff appealed from his for a lease under the 23rd section of the Act, averred that the acts of the directors on behalf of Honour's decision.

the plaintiff company, which preceded and ocinstead of selling the shops as going concerns,

casioned the said indenture of the 2nd March Fry, Q.C. and Ince, for the appellant.

whereby the company alleged that the shops were Koy, Q. C. and Waller, for the respondents. so much reduced in value that they could only 1868 were within their powers and authorities, and

the said indenture was sealed and delivered by Lord Justice JAMES was clearly of opinion that obtain a rent of 3001. a year for them. The comthere was no legal debt. To hold that the mere

pany now appealed from the registrar's decision order of the directors of the plaintiff company fact of an executor opening an acconnt with a bank that they were not entitled to prove for the amount acting within their powers, and was binding on in his character of executor, wonld create a debt of the injury thus occasioned to them.

the company. against the testator's estate, would be to give an

Winslow and Linilley, for the appellants.

Fooks, Q.C., Locock Webb, and W. C. Fooks, in De Gex, Q. C. and Keed, for the trustee.

support of the plea. executor unlimited power over his testator's

estate.
Lord Justice JAMES said that as this was the

Swanston, Q.C. and Graham Hastings, appeared An executor could charge bis testator's estate, but first case which had arisen upon a new section for the official liquidator. the mere fact of his borrowing from anyone in his (s. 23) of the new Act it was just the kind of case

Lord ROMILLY overruled the plea, with costs, character of executor would not create a charge which the registrar should have referred to the observing it was merely, a contradiction of the upon the testator's estate. The executrix in this Chief Judge. That the company were entitled to allegations in the bill, and did not come within the case was personally linble, and the claim of the bank must be disallowed.

prove under sect. 23, his Lordship had no doubt. definition of a plea, which was the statement of The Act

a new fact which, if introduced into the bill, would It was settled by the authorities that in such a discharge the bankrupt from contracts and conLord Justice MELLISH was of the same opinion. ani liability capable of proof. Its object was to render it demurrable.

Solicitors, Harper, Broad, and Co., and H. case as this the executor was personally liable, tingencies of every kind, and to let him start again

Jackson. and not the testator's estate. To hold the contrary would be to allow debt contracted by the his being discharged from his contracts and liaas a perfectly free man, and the persons injured by

Re CONTRACT CorPORATION (LIMITED) executor to come into competition with the debts bilities were to share in the distribution of his

(Gooch's CASE). of the testator. Ortler accordingly dischargeil with costs. assets to the extent of the injury inflicted upon Oficial liquillator - Affidavit -- Production of }

documents. Solicitors for the appellant, Stephens and

them. Injury under sect. 23 meant legal wrong

done to the person with whom the bankrupt had This was an adjourned summons on the part of Matthews. Solicitors for the respondents, Stevens, Wilkin contracted, and not loss of proof under sect. 31. Mr. Gooch, an alleged contributory, requiring an

The appeal must therefore be allowed, the com- affidavit by the official liquidator as to documents son, and Hurries.

pany being entitled to prove for the difference be in his possession relating to the question at issue

tween 3001. a year for the residue of the lease and between them. The official liquidator offered an Tuesday, Nov. 21. the fair letting value of the shops.

inspection of the papers and documents, of which CARVER v. PINTO LEITE.

Lord Justice MELLISH was of the same opinion. there was an immense mass, and it was contended Discovery-Trade mark-Infringement. Solicitors for the appellants, Willoughby and

on his behalf that he ought not to be compelled to THIS was

make the affidavit, and put to the expense of Cor. an appeal from an order made by Wickens, V.C., when Vice · Chancellor of the

Solicitors for the trustee, Parker, Lee, and searching through and scheduling them.
Haddock.

The Solicitor-General (Jessel, Q.C.) and Bag. County Palatine of Lancaster. The suit was in. stituted by Messrs. Carver Brothers and Co.,

shawe appeared in support of the summons. who are general merchants and commission

Thursilay, Nov. 23.

Sir Richard Baggallay, Q.C. and J. W. Chitty agents, carrying on business at Manchester,

Er parte BOLLAND; Re CHERRY.

for the official liquidator.

Lord ROMILLY said the official liquidator was to retrain Messrs. Pints, Leite, and Son, who Bankruptcy Act 1869, s. 92Fraudulent preference. carry on the business of commission agents This was an appeal from a decision of the Chief in the same position as a defendant under the old

Manchester, from using or placing the cotton cloths exported by them certain Liverpool County Court, whereby it was declared official liquidator should furnish the affidavit. on Judge, reversing a decision of the Judge of the practice when interrogated as to the documents in

his possession. It was ultimately agreed that the numbers, letters, and other marks which the that a certain payment made by the bankrupt

Solicitor for Mr. Gooch, H. W. Valance. plaintiffs alleged to be their own trade marks. i amounted to a fraudulent preference, and the

Solicitors for the official liquidator, Linklaters An order having been made in the suit that payee was ordered to refund the amount to the

and Co. the defendants should produce certain books, trustee of the bankrupt's estate. The hearing of &c., with liberty to seal up such parts of them as the case before the Chief Judge is reported in 25 L. T.

Nov. 3, 4, 6, and 20. did not relate to the subject matter of the suit, Rep. N. S. 276, where the facts of the case will be the defendants sealed up considerable portions of found fully stated. The question as to the payment The COMMISSIONERS OF SEWERS OF THE CITY

OF LONDON V. GLASSE. the books, and on an application by the plaintiff's' was tried by the judge auch a special jury, who found for further discovery, the Vice Chancellor made that the bankrupt was, at the time of the payment, Right of common.Suit to enforce-Jurisdiction an order that the defendants should unscal the unable to pay his debts; that he had not made - Demirrer-Multifariousness-Want of parties. portions of the books showing the prices paid for the payment with the view of preferring the payee This was a suit by the plaintiffs, as owners and goods to the manufacturers, the places to which over his

other creditors ; and that the payment occupiers of certain lands near Barking within the the goods were sent, the names of the writers of was made voluntarily and without real pressure boundaries of Epping Forest, on behalf of themcertain letters, and the names of the persons to from the creditor at a time when the debtor might selves and all other the owners and occupiers of whom the letters had been sent. The defendants' be reasonably supposed to know that bankruptcy lands and tenements within the forest, except the appealed from this order. was imuninent.

defendants, against the lords of several manors North for the appellants.

Herschell (of the Common Law Bar, with him within the boundaries of the forest, and against Robinson in support of the order.

Little, Q.C.), for the trustee, who appealed from the Attorney-General, as representing the Crown, Lord Justice JAMES was of opinion that the the order of the Chief Judge.

Epping Forest being a royal forest. The bill prayed Vice-Chancellor was substantially right. De Ger, Q.C. (und Charles Russell, of the Common that it might be declared that the plaintiffs and general rule was that when discovery was ordered, Law Bar), who appeared in support of the order, the other owners and occupiers of lands and tenefull discovery must be made of everything mate- were not called upon.

ments within the forest were entitled to the right rial to the plaintiff's case, except its production Lord Justice JAMES said that in his opinion the of common of pasture over the waste lands of the would be of overwhelming injury to the defendant. decision of the Chief Judge was perfectly well forest, and that the defendants might be reIn this case the discovery of the names of their founded. The proper question had been left to the strained from enclosing or permitting to remain customers, and of the prices paid for their goods, jury, namely, whether the payment was made with enclosed, any part of the waste lands of the forest might be very injurious to the defendants, and the view of preferring the payee over the other cre- which were subject to such commonable rights. could not be of any material service to the pluin- ditors, and the jury had found that it was not so

The defendants demurred to the bill for want of tiffs. Therefore the order must be varied by made. The other findings of the jury were said to jurisdiction, the Forest Courts being, they con

[ocr errors]

at

The

« EelmineJätka »