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NOTES OF NEW DECISIONS. ADJUDICATION OF BANKRUPTCY-NOTICE OF PETITION-TRADER DEBTOR-DEPARTING FROM DWELLING-HOUSE OR ABSENTING HIMSELF WITH INTENT TO DEFEAT OR DELAY HIS CREDITORS.B., a trader in London, went on the 27th July to Paris, and returned to London on the 29th July. On the 28th July a creditor filed a petition in bank ruptcy against him, in which the act of bankruptcy alleged was that he had departed from his dwelling house, or otherwise absented himself, with intent to defeat or delay his creditors. On the same day an order was made under the 65th rule of Jan. after leaving a sealed copy at B.'s usual or last known place of residence or business. A sealed copy of the petition was accordingly left at B.'s place of business, and on the 31st July the petition came on to be heard; meanwhile B., on his return to London, on the 29th July, had found the sealed copy of the petition, and had instructed his solicitor to oppose the adjudication. The solicitor attended the Court of Bankruptcy on the 31st July, and found the petition being heard. The hearing was at his request adjourned till the next day, when he tendered some affidavits which the registrar refused to receive, and adjudicated B. a bankrupt. On appeal, Held that the 65th rule did not apply to this case, but that B. was entitled to be heard in opposition to the adjudication upon such notice and in the same way as is provided by the rules of Jan. 1870 in any ordinary case. The order of the registrar was accordingly discharged, and the matter was referred back to him to be dealt with in the ordinary way: (Ex parte Brelaz, re Brelaz, L. T. Rep. N. S. 403. Chan.)
1870, that the petition should be heard forthwith
CAMBRIDGE COUNTY COURT.
(Before EDMOND BEALES, Esq., Judge.)
Bankruptcy-Bill of sale-Necessity for registration-Rights of trustee.
THIS was an application made to the court by Mr. Frederick Mutton, of St. Ives, for an order directing that certain household furniture, plate, linen, china, goods, chattels, and effects, lately belonging to the bankrupt, and sold by Mr. Edward Bell, of Cambridge, the trustee under the bankruptcy, be delivered up to the bankruptcy.
W. Bush Cooper (of the Home Circuit, specially retained, instructed by Wallingford and Day, of St. Ives), supported the application.
Cockerell and Horace Brown (instructed by Edmond Foster) were for the trustee of the estate.
It appeared that on the 15th March, Mr. Martin Cole, farmer, of Barrington, was declared a bankrupt about 10.30 a.m., and the registrar of the County Court was in consequence forthwith ordered to take possession of his property. On the 10th March, the Sheriff of Cambridgeshire had seized his goods under three different writs of fieri facias, under which the sum of 2941. 10s. was to be levied. On the night before the adjudication of the bankruptcy, Mr. Mutton, who held a bill of sale (unregistered) for 300l. on the property, went over to Barrington and found the sheriff's bailiff in possession, and Mr. Mutton left a man also in possession all night. Next morning, about ten, Mr. Wisbey, the auctioneer, commenced taking an inventory for Mr. Mutton, but before he arrived, the bankrupt had left home and gone to Cambridge to be declared bankrupt. Mr. Mutton arrived about noon, and paid out the sheriff's bailiff, and an hour or two afterwards the bailiff of the County Court arrived and gave Mr. Mutton a notice to give up possession in consequence of the bank. ruptcy. The three writs of fi. fa. were at the suit of Mr. F. Poland Adcock, for 133l. 10s., Thomas Ivatt Hall, for 95l. 10s., and George Dawson, for 651. 101. Mr. Mutton commenced an action in the Court of Queen's Bench against the Sheriff of Cambridgeshire and his bailiff, to recover back the money he had paid to pay out these executions, and this is still a lis pendens.
Bush Cooper opened the case, and in the course of a long legal argument supported the application, contending that it was not absolutely necessary that a bill of sale should be registered, and quoted many cases in support of his contention.
Cockerell followed on the other side, arguing that the bill of sale must have been registered, otherwise the provisions of the Bills of Sale Act (17 & 18 Vict.) would be evaded. This was a secret disposition of property on the part of Mr. Cole, the very thing that was provided against by that Act. By a recent decision, reported in the Law Reports of October (Ex parte Lewis, re Henderson), it was decided that the goods belonged to the trustee in bankruptcy as being in the apparent if not in the actual possession of the bankrupt, and the possession taken by the broker's
man was merely formal possession. This case he
Notice in "Gazette."
C. W. Palmer (Barlow and Palmer) applied for
LINCOLN COUNTY COURT.
Declaration of insolvency-Ignorance of debtor.
that Grosvenor had been led by Lister to make a
Mr. Spinks proved that Grovesnor was indebted
Mr. Toynbee, who attested Grosvenor's signa-
when it was filed.
Wood then stated that the petitioning creditors
grossly deceived. He will have great difficulty in
stated by Wood, and that he did not ask Lister
Plaskett.-The affidavit shows why it was taken
His HONOUR.-This was an act of bankruptcy
of the previous petition being filed against me.
man in possession on the 7th Oct. Both men are still in. I did ask who was to pay for their keep, but I do not remember asking what was to be allowed for the support of my family. I have been a bankrupt before, and was allowed 31. a week, I had been served with four or five County Court summonses.
By Wood. I had been served with a notice of the petition.
cation. Grosvenor must have been aware of what His HONOUR said he could not stop the adjudithe declaration having been forced on him. He he was doing. He could not credit the story of
ruptcy. He should direct the registrar of the court to take possession of the property, but the restoration of the goods claimed under the bill would subsequently entertain any application for
was satisfied he knew it was about his bank.
NEWCASTLE COUNTY COURT.
(Before T. BRADSHAW, Esq.)
Liquidation-Injunction-Sale by Sheriff-Execu-
Slater v. Pinder and Ex parte Rockes, re Hall ON the 24th Oct. the debtor filed a petition in liquidation for arrangement with his creditors, upon which a receiver was appointed. The receiver found the Sheriff of Northumberland in possession of the debtor's stock and effects, under two warat the suit of Messrs. Clark, and the other for a rants for execution-one for a debt exceeding 50l., debt under 501., at the suit of Messrs. Joseph, of London. On the filing of the petition, a restraining order was obtained against the sheriff, and notice was given that an application would be made to make the order absolute. In defiance of that order the sheriff sold the debtor's goods, and realised 120l. which was sufficient to satisfy the
of South Shields, on behalf of the Trustee, applied
Clark, execution creditors.
He stated-This is an application to make a re-
Hall was a farmer, and not a trader, and the judgment was for less than 501. But what are the facts in this application? The debtor is a trader, and the judgment recovered exceeds 50l. A petition for liquidation (which is equivalent to an act of bankruptcy, Ex parte Keys, re Skinner, 25 L. T. Rep. N. S. 315; Ex parte Duignan, 25 L. T. Rep. N. S. 286) is filed. But by sect. 3 and sub-sect. 5 of the Act, it is enacted that execution issued against the debtor on any legal process for the purpose of obtaining judgment of not less than 501. is, in the case of a trader, an act of bankruptcy. Thus the act of the execution creditor ipso facto defeats itself. Moreover the judgment here being for a sum exceeding 501., and the goods seized and sold being those of a trader, the case is brought within the provision of sect. 87, which provides that the sheriff, or high bailiff "shall retain the proceeds of such sale in his hands for a period of fourteen days, and upon notice being served on him within that period of a bankruptcy petition having been presented against such trader, shall hold the proceeds of such sale, after deducting expenses, on trust to pay the same to the trustee." I have already said that the petition for liquidation is equivalent to a bankruptcy petition, and the sheriff, having had due notice within the prescribed period served upon him, the title of the trustee is complete. I have therefore no alternative but to grant the application, and to make the restraining order perpetual, and to direct the sheriff to pay to the trustee the proceeds of the sale, after deducting the expenses of realisation.
OLDHAM COUNTY COURT.
(Before J. F. TWEEDALE, Esq., Registrar.)
Bankruptcy-Order for alimony by Divorce Court - Application to assess value Contingent liability. In this case Jane Wrigley had obtained a decree from the Divorce Court against her husband Lees Wrigley for judicial separation and for payment to her out of his income, and, until further orders of that court, of permanent alimony at the rate of 521. per annum. Wrigley was attached under this decree in 1869, and lodged in gaol at Lancaster, and he was there adjudged bankrupt by Mr. Macrae, the then registrar of the Bankruptcy Court at Manchester. The proceedings were referred to the court at Oldham in consequence of the bankrupt's residence being within that district. The only creditors who proved were the bankrupt's wife for arrears of alimony, and a firm of solicitors for a bill of costs. A creditors' assignee was appointed, who paid these claims in fall, and retained some estate in hand, and the registrar was now asked to assess the value of Mrs. Wrigley's future alimony. Learoyd, of Huddersfield, for Mrs. Wrigley, in support of the application.
Brooks, of Ashton, for the bankrupt. The case had been adjourned, and the REGIS TRAR, in now delivering judgment, said he had been referred by Mr. Learoyd to sects. 175 to 178 of the Bankruptcy Act 1849, also to Ex parte Tindal, referred to in Parker v. Ince (28 L. J. Rep. N. S. Ex. 189). He could not proceed to assess the value of an alimony which was to be paid only by order of a court of law. If it were for a lifetime he could take the Government tables and arrive at what it was worth. But supposing the circumstances of the bankrupt were to change he might apply to the Divorce Court to diminish the annuity, and he (the registrar) would be called on to revalue it. Martin, B., in Parker v. Ince, said, "How can you calculate whether a man and his wife will go together again? Their doing so depends upon a thousand circumstances which it is impossible to estimate." It was impossible for him to assess the value of this alimony, because there is no fixed time during which it has to be paid, and it may be either increased or diminished as circumstances arise. He therefore dismissed Mrs. Wrigley's application with costs.
Mr. Joseph Hind, Deputy Registrar of Deeds for the East Riding of Yorkshire, has become insolvent. His debts are 41961.; his assets 1017.
SCHOOL BOARD OFFICE OF CLERK-THE
OFFICE OF CLERK TO A SCHOOL BOARD, under 8. 35 OF THE ELEMENTARY EDUCATION, IS HELD
DURING THE PLEASURE OF THE BOARD.-Upon an application for a writ of quo warranto against the clerk to a school board, on the ground that he was improperly elected according to the provisions of 33 & 34 Vict. c. 75, s. 35; The court refused a rule, considering that the majority of the board might, without assistance, remedy the impropriety themselves, the office being held during the pleasure of the board: (Bradley v. Sylvester, 25 L. T. Rep. N. S. 459. Q. B.)
ASHBOURN COUNTY COURT. Oct. 20, and Nov. 7. (Before G. RUSSELL, Esq., Judge.) STODDART AND ANOTHER v. WIBBERLEY. Landlord's claim for dilapidations. In this case his Honour had reserved judgment. Derby, appeared for the plaintiffs; and Leech, of Derby, instructed by John Smith, of Huish, of the Midland Circuit, instructed by Bamford, of Ashbourn, appeared for the defenThe cases of Neale v. Ratcliffe (15 Q.B. 916), and Coward v. Gregory (L. Rep. 2 C. P. 153), were cited by Leech for plaintiffs;
The defendant was
645); and Thomas v. Cadwallader (Willes 496), And the same cases, with Slater v. Stone (Cro. Jac. as to the condition precedent; and Taylem v. Wildin (18 L. T. Rep. N. S. 655), as to effect of notice to quit, were cited by Huish for defendant. The facts are as follows:- At Lady day 1856, the defendant became yearly tenant to the plaintiffs of a water corn mill at Sturston, near Ashbourn, and also of a house and twenty acres of land. An agreement of tenancy, dated 7th April 1856, was entered into between the parties. It contained a stipulation, among others, on the part of the defendant, "to maintain, preserve, and keep in good working order and condition to the satisfaction of the said Elizabeth Stoddart and George Williams, the said watermill and the gear, tackle, machinery, and fittings up of the same (except the large wheels, shafts, and millstones, whereof the said Brian Wibberley hereby agreeing to fairly use and take proper care thereof), and also the said mill dam and appurtenances, and also the said messuage or dwelling house, stables, out-houses and out-buildings, and all other the premises hereby agreed to be let, and also the gates, stiles, and fences iu, upon, or about the said premises (the same having been put into good tenantable repair by the said Elizabeth Stoddart and George Williams) damage and accidents by fire, storm, floods, and tempest bound to yield up the property so repaired, kept, also excepted." further and preserved at the end of his tenancy. In 1869 the plaintiffs, intending to offer the property, with other estates for sale, gave the defendant notice to quit at Lady-day 1870. They afterwards decided to delay the sale for a year, and at their very urgent request the defendant, who was anxious to leave, consented to a withdrawal of the notice to quit. In July 1870 the whole of the estate was put up for sale in lots, and was purchased, with the exception of one small field, by Mr. Godber. One of the conditions of sale was to the effect that the purchasers should be bound by and be held to have notice of the state of the rethe terms of the existing agreements of tenancy, spective lots as to repair, insurance (if any), and all other matters. At Lady-day last the defendant quitted the property, and the purchaser subsequently claimed from him damages for yielding up the property in a state of great disrepair. The defendant resisted the claim, on the ground that the plaintiffs had not put the property in good and tenantable repair, and that this was a condition precedent to any obligation to keep and leave in repair attaching on him. The purchaser, therefore, brought this action in the name of the former owners, being debarred by technical rules from suing in his own name, and claimed 175. as damages. The defendant's attorney had consented to the County Court having jurisdiction. It will be observed that the parenthetical clause in the agreement was ambiguous, and that two meanings might be assigned to it, one being "the same having been already put into repair,' and the other, "the same having been first put 9 into repair." For the plaintiffs it was contended that the clause was, on the true construction of evidence was inadmissible to explain it, and it was the agreement, a recital of a fact, and that oral urged that the cases on which the defendant would probably rely, were distinguishable from this, that in them the present and future tenses were employed, and not the past tense, as in this instance. The defendant, on the other hand, maintained that the parenthetical clause expressed a condition precedent, and the performance of it by the plaintiffs must be strictly proved to support this action. It was also urged that the notice to quit by an irresistible legal rule, which the intention of the parties could not modify, created a new tenancy, and put an end to the obligations of the old one. The existence of an authority to the purchaser to use the names of the former owners in this action, was also questioned.
shall accept the statement of Mr. Leech for the
Bamford applied at this court that the plaintiffs might be nonsuited with costs, stating that he expected some one to appear on behalf of the plaintiffs and ask for an adjournment, if his Honour chose to await the arrival of the next ment, on the ground that in June last he had distrain. He, however, should oppose an adjournputed the defendant's liability, for the two reasons that the agreement made the repairs by the plaintiffs a condition precedent to the defendant's liability, and that they had never done such repairs, and that consequently the plaintiff's had received five months since full notice of the nature of the defence.
His HONOUR said that the plaintiffs' representative should have been in court, and he should nonsuit the plaintiff with costs, leave to be reserved to move at the next court to set aside the nonsuit, if the essential evidence were forthcoming.
BIRMINGHAM COUNTY COURT. (Before R. G. WELFORD, Esq., Judge.) LONDON AND NORTH-WESTERN RAILWAY COMPANY v. SCOTT; SAME v. SAME. & 10 Vict. c. 9-Dividing cause of action-Pay
ment into court in one action a bar in the other. His HONOUR delivered judgment in these and North-Western Railway Company sued the causes. He said that in these actions the London defendant in two separate actions; both com. menced in that court on the 4th Oct.; the one action being for the carriage of fish to Birmingham in Aug. 1870, amounting to 17. 10s.; the other, also for carriage of fish, on the 21st Feb. 1871, amounting to 21. 1s. 10d. Both summonses
were returnable on the 6th Nov. The defendant
paid into court in due time, according to the rules, the sum of 21. 1s. 10d., being the amount of the action for the carriage of fish in February last; and at the hearing of the other action for the carriage of the fish in Aug. 1870, objected that, in bringing the two actions, the plaintiffs had contravened the 63rd section of the 9th & 10 Viet. c. 95, which enacted that it shall not be lawful for any plaintiff to divide any cause or action for the purpose of bringing two or more suits" in any County Court. It was argued for the defendant, that these two items of carriage constituted one cause of action, on the 4th Oct. I'last, when the two actions were brought within
The learned JUDGE gave judgment as follows:I am of opinion, as the matter now stands, and in the absence of further proof, my judgment must be for the defendant. I assume that the plaint is rightly proceeding in the name of the plaintiffs.
the decision in Grimbly v. Ackroyd. To that, for the plaintiffs, it was answered that a plaintiff might sue for a part of his demand-say for goods sold -down to a particular period, without including goods sold at a more recent date. That might be so, but that was not the question now before him, and he did not mean to express any opinion on the point. Here, on the 4th Oct. all that the plaintiffs, by their two actions, claimed against the defendant was actually due, and might have been included in one action-being, as he read the Act, one 66 'cause of action,' or, in other words, the cause of one action;" and the only assignable cause for dividing the cause of one action appeared to have been for the purpose of bringing two actlons. This was forbidden by the statute. Then for the plaintiffs it was asked that the action for the earlier item of Aug. 1870, should be struck out, and that the action for the latter item of Feb. 1871, might be amended by including the two items in that action. But he thought such an application came too late. The plaintiffs having improperly, i.e., contrary to the statute, brought two actions for one cause of action, i.e., for two items of an account, and being met by a payment into court of the demand made by the action for the last item, could not afterwards amend by including in one action items which ought originally to have been so included, but which the plaintiffs thought fit to divide by bringing two actions. Even if he had a discretion to make such an amendment in such a case as this, and he did not think he had, he would not exercise it in the plaintiffs' favour. There would be a verdict for the defendant, with costs.
NEWNHAM COUNTY COURT.
(Before CHARLES SUMNER, Esq., Judge.)
THIS action was heard at the October court. It was brought by the plaintiff, who is bailiff to the Sheriff of Gloucestershire, to recover the sum of 41. 4s. 6d., for fees claimed by him from the present defendants, who were the plaintiffs in an action against one Wm. Edmunds, and against whose goods they had issued an execution, and delivered the same to the Sheriff of Gloucestershire. This official issued his warrant, and delivered it to the plaintiff, who levied on some goods and chatteis which were supposed to belong to Edmunds, but which were claimed by several persons. Defendants, after investigation, informed the under sheriff that they had made inquiries, and believed the claimants could maintain their claims, and that they should not appear in any interpleader summons which might be issued. Thereupon Brewer withdrew from possession, and sent in his account to the defendants, who refused to pay it on the ground that he was the plaintiff. These proceedings were then instituted.
His HONOUR, who reserved judgment, gave it as follows:-" In this case the plaintiff, a sheriff's officer, sued the defendants for his fees, on executing a fi. fa. which had been issued at the instance of the defendants in an action by them against one Edmunds. After the goods were seized a claim to them was put in by another person, and the defendants, upon receiving notice of such claim from the officer, declined to contest it, and he withdrew, and brought this action against the defendants, who acted throughout as their own attorneys, for his fees. Evidence was given that the defendants had pointed out to the plaintiff the goods in question as those upon which the fi. fa. was to be levied. The question which I have to consider is whether an action will lie. On behalf of the plaintiff Mr. Hunt cited a number of cases which have been recently decided in various County Courts, in which the attorney instructing the sheriff to execute the writ has been held liable to the officer for his fees, even although the execution has been abortive or unproductive. On examination of as many of those cases as I have been able to refer to, I find that nearly all are distinguishable from the present. In Bennett v. Snow, decided at Worcester, the levy had been defeated by a claim put in by the landlord for rent, so that, as was observed by the learned judge, there had been a good execution against the goods of the execution debtor. In Tuckey v. Hurford, at Clerkenwell, the officer had done all in his power to execute the writ, and had only failed to do so from the fact of the debtor not having any goods. Of the case of Brewer v. rule, stated to have been decided at Bristol, I have not been able to find a report. It may or may not be on all fours with this. Newman v. Froggatt, decided at the Westminster County Court differs from this, as the defendant in that case gave special directions to the officer by which he was induced to arrest the wrong person. In the case of Newman v. Morris, decided by the same judge, the writ had been duly executed. Two cases, however, Newman v. Russell, and Newman v. Merriman, do not appear to be dis
tinguishable from the one under consideration. In those cases the judge of the City of London Court held the action maintainable. It is clear, however, that I ought not to follow this unless it commends itself to my own judgment, and I am of opinion that it is not consistent with sound legal principles. For the action, if maintainable, must be so either in pursuance of a contract, expressed or implied, or by virtue of the statute which regulates the fees of sheriff's officers. There is here no express contract, for no direction was proved to have been given to the sheriff except that contained in the writ, nor can any contract, in my opinion, be| implied from the circumstances. No custom for the party or attorney to pay the fees in such a case was proved, or, as I believe, could have been proved, and I see nothing from which an undertaking to pay them can be inferred. The sheriff is bound, in virtue of his office, to execute the writ, and it is notorious that the proceeds of the execution are looked to for the incidental fees and expenses, and the sheriff's officer, as well as the sheriff himself, must take the rough as well as the smooth part of his office; nor is it harder that he should lose his fees than that the execution creditor, who has done no more than set the law in motion, should defray them out of his own pocket. There is therefore no contract upon which the plaintiff can rely in this action; nor can he ground his claim upon the statute, for that gives him a right to the fees only when he levies on the goods of the executiondebtor, and not when he levies on the goods of a strainger. On principle, therefore, I think the action will not lie, and I think also (like the County Court judge at Newbury, in the case of Twiling v. Cave) that I am bound by the authority of the case of Cole v. Terry (5 L. T. Rep. N. S. 247), following the Nisi Prius decision in Bilke v. Havelock (3 Cam. 347), in which the same point arose, and was decided against the plaintiff. I am aware that Bilke v. Havelock was decided before the statute of 7 Will. 4, & 1 Vict., but Cole v. Terry was decided since the statute came into operation; and for the reason already given I think the statute does not alter the position of the plaintiff in this respect. There must be, therefore, judgment for the defendants; but if the plaintiff wishes to take the opinion of a Superior Court, he may have leave to appeal.
THE CENTRAL CRIMINAL COURT.-Allow me the opportunity, through the medium of your journal, to express to Mr. Avory the thanks of every respectable and honourable attorney throughout the kingdom, and especially of those who practise in our criminal courts, for the strenuous exertions he is making in order to put a stop to the disreputable practices so extensively carried on by low, needy, and unprincipled members of the legal profession, either personally or by means of their clerks, or pretended clerks. Hundreds of barristers and attorneys, who do not practise in the criminal courts, can have no idea of the existence, or certainly of the extent, to which these malpractices are carried, and I am sorry to say that I fully concur in the observation made by Mr. Lewis in the late proceeding at the Worship-street police court, "that the practices complained of are not limited to one portion of the Profession." Mr. Avory's exertions to abate this evil are most praiseworthy, but without the co-operation of those members of the Bar who attend our criminal courts, I fear that means will be devised by which to evade any rules that may be framed. It is sad to see how entirely the old and wholesome regulation, or etiquette, which prevented counsel accepting a brief, except from an attorney, is disregarded in the present day; but I do not hesitate to say that more than half the briefs now held by counsel at our criminal court are prepared by their own clerks from instructions they receive direct from clients, either at their masters' chambers, or else at some public house adjoining the court. Counsel should remember Facit per alium facit
per se, and that if they sanction any unprofessional conduct on the part of their clerks it is as wrong as if they personally did the act. Let us, however, hope that every respectable member of the Profession will exert himself to the utmost in order to assist Mr. Avory in his landable endeavour to introduce and enforce a strictly honourable course of practice in our criminal courts, and let us also hope that our magistrates will lose no time in adopting similar rules of practice for their respective courts to those which Mr. Avory has framed for the Central Criminal Court. If this be done, and strictly enforced, we may further hope that a criminal law lawyer will some day be regarded as equally respectable a member of the Profession as a conveyancing or equity practitioner. WALTER H. FULLAGAR.
MARRIAGE SETTLEMENTS.-By a recent alteration in the English law money secured by a policy of life assurance, can be settled without the intervention of trustees, whereby one impediment to marriage is removed. In these deeds is important to provide for contingencies, so that the husband may not have control over the principal settled, unless it is clearly intended that he should have such power. For instance, in one case, the woman's fortune, after some contention, was settled upon herself, subject to the husband's life interest in the whole fund, with the usual powers in favour of children. The husband had no fortune, but there was a power in the deed for him to receive 2000l., of his wife's fortune, to purchase a commission in the army. This sum, subsequently, was advanced by the trustees, and duly applied. After a few years the husband sold out, and the money received for the commission was applied by himself for his advanceThis business was disastrous ment in commerce. for himself and others, one creditor alone having been a loser to the extent of nearly 10,000!.! The whole 2000l., at least, was thus completely lost, to the prejudice of the trader's wife and issue, which would not have been the case if this 20007. had been resettled, as it ought to have been, upon the same trusts as the fund from which it was taken. Although the purchase system in the British army has ended, a similar case might occur, where a power of advancement is contained in a settlement in favour of a husband without a resettling classe, as above-mentioned.
THE NEW RULES OF THE INNS OF COURT.In your last number you announce that "the Inns of Court have determined that there shall be a compulsory examination of students for the Bar before they are called to the Bar, or allowed to practise under it." You state that there is some doubt in the minds of the present students whether this notice is retrospective, but give your own opinion that it is not. There surely ought not to be any doubt as to the correctness of your opinion, for the regulation under which the students have entered is as follows: That no student shall be eligible to be called to the Bar, who shall not have attended during one whole year the lectures and private classes of two of the readers, or have been a pupil during one whole year, or periods equal to one whole year in the chambers of some barrister, &c., or have satisfactorily passed a general examination. Now existing students have, in accordance with the regulations, passed a preliminary examination, and have selected one of the above conditions. Their fees have been paid with this understanding, and their friends have been subjected to the expense either of making a home for them in or near London, to attend the lectures and private classes, or of their reading with a barrister in chambers terms having been accepted by the students and their friends, I ask whether it would be consistent with justice that any new arrangements should be retrospective.
A PARENT OF A STUDENT. [There is, we believe, no ground for apprehension.-ED. L. T.]
THE COUNTY COURTS.-As in all probability during the coming session alterations and amendments will be made in the County Court laws, will you allow me, through the medium of your valuable columns, to make a few suggestions for the calm consideration of my professional brethren? As most likely the County Courts will very soon become courts of first instance in nearly all cases, it is most desirable that, acting on the maxim of bringing justice home to every man's door, greater facilities should be accorded to inhabitants of populous towns and districts who have not the privilege of having a County Court held within many miles of such places. In many instances, to my own personal knowledge, this is a cause of great grievance, not only to plaintiffs, but to defendants also. Often plaintiffs prefer to lose small debts and defendants do not attend the court in consequence of the distance they have to travel;
I therefore submit that in the next Act of Parliament to be passed on County Court Law, provision should be made for remedying this evil. I would also suggest that in the case of non-appearance of the defendant, without due cause being shown, judgment should be given in favour of plaintiff as a matter of course. As there are no pleadings under the present County Court system, every defendant intending to defend an action in a County Court, should give at least six clear days' notice to the plaintiff of his intention, stating shortly the grounds of defence; also that in cases of ordinary trade debts the books of a trader (say a grocer, for instance, with whom the defendant has a running account) shall be received as prima facie evidence of the delivery of the goods unless the defendant gives notice of his intention to dispute any particular item. This would save great expense and trouble to suitors and would afford to all of them the benefit which is now only partially enjoyed by some, under 32 & 33 Vict. c. 142, s. 2. I leave it for the consideration of more able members of the Profession than myself. A COUNTRY ATTORNEY.
LIQUIDATION PROCEEDINGS-ADJOURNMENT. OF MEETING.-It is to be feared that the judgment of the Lords Justices in the case to which you have drawn attention (Ex parte Orde; re Horsley), whilst clearly settling one portion of this rather important subject, may create difficulties with regard to another portion of it, in consequence of a statement of Lord Justice James which you have quoted in your article. "The Registrar 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 words I wish to call attention to are those in italics, which I was unable to understand when I read your report of the case last week. What section or rule gives any power to a majority of two-thirds either in number or value? Although there is no direct power to adjourn, it has long been settled that creditors at liquidation meetings are enabled to do so, either by virtue of the liquidation rule 293, or rule 93, but it has always been considered that an adjournment is carried by an ordinary resolution as defined by sub-sect. 7 of sect. 16, by "a majority in value of the creditors present, personally, or by proxy, at a meeting, and voting on such resolution." The judgments of the Lords Justices are perfectly clear as to the mode in which the "voting" shall be evidenced, and, considering the turmoil and confusion which exist at many meetings, their Lordships appear to have established a sound principle in deciding that nothing but the resolution shall be looked at in connection with the proof of debt exhibited at the meeting, and left in the hands of the chairman to be handed to the person entrusted with the papers. The list of creditors contains the names and amount of proof of all who attended the meeting personally or by proxy. These creditors form the meeting. If the resolution is not signed by any particular creditor, that creditor must be deemed to have voted against; it if his signature is not obtained as attending, he must be considered a dissentient. Certainly it would appear from the wording of the definition of an ordinary and special resolution, and that of an extraordinary
resolution, as defined in sect. 126, that in the former cases the creditor must vote or not vote and in the latter case, whether he votes or not, if he is one of the creditors assembled, he must be considered as a dissentient, if he is not assenting. The decision of the Lords Justices has, how ever, simplied this portion of the subject, although I cannot help foreseeing difficulties in the working of it. If the creditor who does not wish to vote, withdraws his proof at the meeting, there appears to be nothing to prevent his placing it again in the hands of the person entrusted with the papers within the three days, or before the filing and registration of the resolution, and voting for it whether adjourned or otherwise, since he was a creditor assembled at the meeting. Indeed, the recent decision is quite consistent with that which was involved in the judgment of the Lords Justices in Ex parte Pooley, re Sir Wm. Russell, that a creditor, who at the meeting voted against the resolu tion for liquidation, could, before its filing, alter his mind and sign the resolution, or rather withdraw his opposition to it. It may be that these decisions place the manipulation of the proceedings too much in the hands of the person entrusted with the papers-in most cases, the debtor's solicitorbut perhaps it is considered that any disadvantage which may arise in this respect, is to be counterbalanced by the simplification of the proceedings and the avoidance of those conflicts of testimony which must ensue, if the question of voting or not voting is to depend on the evidence of adverse witnesses. With regard to the majority required to carry an adjournment, on which the validity of
the subsequent proceedings rests, there can be little doubt that it must be a majority in value, but it appears difficult to understand what the words "majority of two-thirds, as the case may be," mean. I am myself rather opposed to adjournments, because I think in many cases they are calculated to operate against the interest of the general body of creditors; but, if considered desirable, it is to be regretted that any doubt whatever should exist as to the practical mode of carrying a valid resolution for this purpose into effect. J. SEYMOUR SALAMAN.
31. CONDITIONS OF SALE.-A. and B. are purchasers, at an auction, of different lots having one title. A. is being required, by the conditions of sale, to enter into the larger purchaser, and therefore takes the deeds; a covenant for their production. The conditions state that "every covenant for the production of deeds, entered into pursuant to these conditions, shall be prepared by and at the expense of the persons requiring the same." Can A. charge B. with the costs of A.'s solicitor for perusing and approving the deed of covenant, obtaining execution thereof by A., &c.? What is the usual practice in such cases? G. W.
32. MERGER OF RENTCHARGE AND COVENANTS.-Will any of your correspondents favour me with an opinion, following cases? In the first case A., the owner in fee, and, if possible, reference to authorities on the two sells building land, in consideration of a perpetual yearly rentcharge, and the land is conveyed in the ordinary way to uses, reserving the rent to A., his heirs and assigns, with the usual powers of distress, &c., and subject thereto to the use of the purchaser in strictive covenants with A., his heirs, executors, adfee; and the purchaser enters into binding and reministrators, and assigns, and these are followed by the usual power for A., his heirs and assigns, to re-enter for breach of covenant. Subsequently A. advances money of his own on mortgage of the property, which is conveyed to him by the mortgage, "subject to the said rentcharge and to the powers and remedies for recovery thereof, and to the covenants and provisions contained in the said original conveyance," and the mortgagor covenants to pay, perform, and observe the rentcharge and covenants, and to indemnify the mortgagee. The second case is precisely similar to the first except that instead of the mortgage money being advanced by A. alone, it is advanced by A. and B. jointly, out of trust funds in their hands, and the mortgage is made to A. and B, and contains the usual declaration as to the advance being made out of joint moneys. Is the rentcharge, or are the covenants merged, or are A.'s rights and powers under the covenants and proviso either of the above cases? and if so, how and to what for re-entry, in any way affected by the mortgage in extent? And what is the best way of framing a mortgage under such circumstances so as to prevent any danger of such merger, &c. ? A SUBSCRIBER.
DEBTOR AND CREDITOR LAWs.-Some profound philanthropist (at other people's cost) and chamber philosopher has originated the idea of bringing forward a Bill during the next session of Parliament to prevent debts below 40s. value being recovered in any law court. A long string of questions, contained in a printed circular, has been sent to a person in Preston engaged in commercial transactions, with the view of obtaining information as to the desirability of the proposed change. The answer returned was as follows: "As the whole proposal can be nothing else than the suggestion of an idiot, it is useless discussing the matter."-Pretson Chronicle, Nov. 25.
ARTICLED CLERKS' SOCIETY. A MEETING of this Society was held at Clement'sinn Hall, on Wednesday, 22nd Nov., instant, Mr. H. Lewis Arnold presiding. Mr. Scully reopened the discussion on the adjourned subject for debate "That the policy of the present Government is worthy of the nation's support." The motion was lost by a majority of two. The following is the Committee's Annual Report for 1870-1871.
"Gentlemen,-Pursuant to the rules of the Society, we present our annual report of its proceedings. The leading characteristic of the past session has been the successful carrying out of the scheme adopted by the Society, shortly before your committee took office, for facilitating discussion on public statutes and Bills pending in Parliament. The experience of the first few meetings showed the desirability of limiting the scheme to the discussion of Bills not passed and of revising the method of bringing them before the Society. The rules were accordingly &mended in these respects, and since that time the new department for parliamentary proceedings has occasioned many very interesting debates, and has brought before the notice of the Society, and enabled it to pass its opinion on, most of the important measures which, during the past sitting of Parliament, have engaged the attention of the Legislature. The engagement of a paid reporter having been discontinued, the reporting has since been under the care of a member of the committee, with a result with which your committee have every reason to be satisfied. The election of parliamentary secretary and honorary reporter, and the retirement of the late treasurer of the Society, have necessitated several changes in the committee, but without, as your committee trusts, impairing its efficiency. Thirty-five meetings have been held during the session, and your committee observe with pleasure that, with this increased number of meetings, there has also been an increased average of attendance of members.
"The following subjects have been discussed:The desirability of legislation to prevent the cir culation of corrupt literature; the attitude of Russia with regard to the Treaty of 1856: marriage with deceased wife's sister; the liability of railway companies in case of accidents to passengers; the necessity of legislation with regard to horse racing and betting; the marriage laws of the United Kingdom; the proceedings of the Government; free trade the amalgamation of the Profession; the expediency of debarring the clergy from sitting in the House of Commons; female suffrage; the Irish policy of the Government; the criminal liability of married women; the extension of the County Courts' jurisdiction; the proper constitution of the proposed Law University; and primogeniture.
"The following Acts and Bills have been considered:-The Married Women's Property Act 1870; the Education Act 1870; the Apportionment Act 1870; the Attorneys' and Solicitors' Act 1870; the University Tests Bill: the Trades' Union Bill; the Army Regulation Bill; the Ballot Bill; and the Licensing Bill.
"Your committee feel assured that the treasurer's report-showing, as it does, an increased income, and a decreased expenditure-will meet with the approval of the Society. The legal correspondence department is also financially in a satisfactory condition. During the past session threeprovincial law students' societies-viz., the Wakefield Articled Clerks' Society, the Yarmouth Articled Clerks' Society, and the Exeter Law Students' Society-have united themselves with this Society. Our relations with these societies, of whom there are now thirteen connected with us, are extremely cordial, and a constant correspondence with them takes place, through the secretary for societies in union, on matters connected with the working of the societies, and the general interests of the Profession. The Davis Prize for last session, consisting of books of the value of 51. 5s., was awarded to Mr. George Whale, as the writer of the best essay on privileged communications. Mr. L. B. Mozley, a member of this Society, obtained the Atkinson gold medal for last year; and Mr. Plant, also a member of this Society, obtained one of the prizes of the Incorporated Law Society in Michaelmas Term last.
"In conclusion, your committee would draw the attention of the Society to the great results that are being daily effected by the combination of interests, and would express a hope that, at a time when so many changes are contemplated in legal education and in the constitution of our judicial system, this society, formed to improve the status and protect the interests of the younger members of the Profession, may continue to receive the hearty support both of law students themselves, and also of those older members of the Profession who have its future welfare at heart.-Signed on behalf of the Committee, Clement's-inn Hall, JOHN PARKER, Secretary.
Nov. 8, 1871.
A meeting of this society was held at Clement'sinn-hall, on Wednesday, the 29th Nov. ult., Mr. Bone, presiding. Mr. Hanhart moved the subject for the evening's debate, viz., "That the seven points in the new social movement are capable of being practically worked out." The motion was lost by a majority of two.
MANCHESTER LAW STUDENTS' DEBATING
AN ordinary meeting of the society was held on Wednesday evening last, the 22nd ult., at the Law Society's rooms, Cross-street, Manchester. S. Hall, Esq., barrister-at-law, in the chair. The subject for discussion was-"Is it desirable that a public prosecutor should be appointed ?" The question was argued in the affirmative by Mr Nuttall and Mr. Bridgford, and by Mr. Davis and Mr. Edwards, on behalf of the negative; the appointed speakers, Messrs. Bowden and Credland being absent. After the debate, the chairman summed up, and, upon the vote being taken, it was found that the members were equally divided; the question being ultimately decided in the negative by the chairman's casting vote. We are requested by the secretary of the society to state that he will feel obliged if the secretaries of the various other debating societies will kindly furnish him, as early as possible, with copies of the rules of their respective societies, it being the intention or the committee of the Manchester Law Students' Debating Socieey to make certain alterations in their rules as they at present stand.
HULL LAW STUDENTS' SOCIETY. Ar a meeting of this society on Tuesday evening last, there was a good attendance of members. Mr. Glover in the chair. Having examined the members on "Fraud," in Smith's Equity, the following point was discussed: "Is an innocent principal responsible for the unauthorised fraud of his agent, made in the course of a contract with a third party ?" (See Udell v. Atherton.) Mr. Spink argued for the affirmative, and Mr. Pearce for the negative. The point was decided by a large majority in the affirmative.
Motions and ad
15 General paper
16 Petitions, short causes, and general
18 In Bankruptcy
19 General paper
21 Third seal. Motions and adjourned
22 Petitions, short causes, and general
V.C. Wickens' Court.
Monday... Dec. 4
Motions and general
8 Petitions, adjourned summonses, and general paper
Short causes, adjourned summonses, and general paper
Wednesday 13 Ditto
14 Second seal. Motions and general
THE late Alexander Atherton Park, Esq., senior master of the Court of Common Pleas, who died on the 21st Nov., at his residence near Twickenham, in the 70th year of his age, was the youngest son of the late Right Hon. Sir James Allan Park, judge of the Court of Common Pleas (who died in 1839), by Lucy, daughter of Mr. Richard Atherton. He was born in the year 1800, and was educated at Harrow and Balliol College Oxford, where he graduated B.A. in 1822, and proceeded M.A. in 1825. Called to the Bar by the Honourable Society of Lincoln's-inn in 1827, he soon gained a distinguished position in the Profession, being appointed to the post of Prothonotary and Master of the Court of Common Pleas, an office which he held for nearly forty-five years, and the duties of which he discharged until within a few days of his death. The deceased gentleman was much respected by the Profession, and the numerous suitors who transacted business before him. A contemporary states that the salary of the senior mastership, vacant by Mr. Park's death, is worth 2000l. per annum, while masters Gordon, Airey, and Bennett, receive respectively 1500l., and that the salary of Mr. Kaye, the junior Master, is 1200l. per annum.
MR. HODSON LLOYD.
WE have to announce the death of Mr. William Hodson Lloyd, barrister-at-law, who expired after a short illness on Sunday, the 26th ult., at the early age of 29. Mr. Lloyd was called to the Bar at the Middle Temple on 30th April, 1869, and soon after joined the Midland Circuit and the Warwick and Birmingham Sessions. He was deservedly popular with his brethren at the Bar, and good expectations were formed of his success in the Profession. So recently as 7th Sept. last
21 Third seal. Bankrupt appeals and
Such days (if any) as the Lords Justices shall be engaged in the full court or at the Judicial Committee of the Privy Council are excepted.
(Before the MASTER of the ROLLS.)
Monday Dec... 4 First seal.
Motions and general
9 Petitions, short causes, adjourned summonses, and general paper 11 General paper 12 Ditto
14 Second seal. Motions and general
Wednesday 13 Ditto
pa per General paper
Petitions, short causes, adjourned summonses, and general paper General paper
Friday Saturday.. Tuesday Monday Wednesday Thursday Friday.
Petitions, short causes, adjourned summonses, and general paper At the Rolls, unopposed petitions must be presented and copies left with the secretary on or before the they should be heard, and any causes intended to be Thursday preceding the Saturday on which it is intended heard as short causes must be so marked at least one clear day before the same can be put in the paper to be
21 Third seal. Motions and general paper
22 Petitions, short causes, and adjourned summonses
N.B.-In Vice-Chancellor Wickens' Court no cause, motion for decree, or further consideration, can, ex cept by order of the court, be marked to stand over, if it be within twelve of the last cause or matter in the printed paper of the day for hearing.
Any causes intended to be heard as short causes before either of the Vice-Chancellors must be so marked at least one clear day before the same can be put in the paper to be so heard.
Professional Partnerships Dissolbed.
Gazette, Nov. 17.
GODWIN, PICKETT, and MYTTON, attorneys and solicitors, King's Bench walk, Temple. Nov. 14. (Alfred Godwin, Henry Pickett. and Thomas Mytton) as regards Godwin.
Gazette, Nov. 21.
BRETHERTON, SON, and HANNAN, sclicitors, Liverpool and Birk enhead. Nov. 11. (Edward Bretherton, Charles Edward Bre therton, and James Hannan.)
HEATHER, JAMES, sen., HEATHER, JAMES, jun., and FLEMING, ALBERT, attorneys and s. licitors, Paternoster-row. Nov. 18.
Gazette, Nov. 24.
To surrender at the Bankrupts' Court, Basinghall-st. BAKER, J. OSBORNE, commercial traveller, Upper Thames st and Park-ter, Regent's-pk. Pet. Nov. 20. Reg. Brougham. Sol. Sydney, Finsbury-circus. Sur. Dec. 8
BRAIN, THEOPHILUS ALFRED, currier, Bridge-st, Stratford. Pet.
To surrender in the Country FORRER, HENRY, BAWDEN, JOHN, and PHIPPS, WALTER, ship. builders, Liverpool. Pet. Nov. 20. Reg. Watson. Sur. Dec. 5 JOHNSON, JOSEPH, and JOHNSON, WILLIAM, millers, Laneham and Spalford. Pet. Nov. 22. Reg. Patchitt. Sur. Dec. 5 LORD, MATTHEW, jun., joiner, Gildersome. Pet. Nov. 18. Reg. Marshall. Sur. Dec. 14
OLDROYD, JOHN, tobacco manufacturer, Dewsbury. Pet. Nov. 21. Reg. Nelson. Sur. Dec. 7
PICKERSGILL, RICHARD, boot dealer, Blackburn. Pet. Nov. 16.
RAPIER, ALEXANDER TATE, homoeopathic chemist, Norwich.
BROWN, MILLER CHARLES, chemist, Witney. Pet. Nov. 25. Reg.
BUCK, WILLIAM CUMMINGS, lieutenant R.N., Fairlight.
LORD, EDMUND; LORD, SAMUEL; and LORD, JOHN, woollen manufacturers, Rochdale. Pet. Nov. 27. Reg. Tweedale. Sur. Dec. 9.
MITCHELL, FREDERICK ROSIER, pawnbroker, Aberdare. Pet. Nov. 22. Judge, Falconer. Sur. Dec. 9