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Vol. 133.-No. 3613.

CONTENTS

REPORTS.

SUPREME COURT OF JUDICATURE. COURT OF APPEAL. EDGERTON v. MOORE.-Employer and workman-Compensation-Notice of accident Mistake as character of illness - Delay -Employer prejudiced in his defence SLINGSBY . SLINGSBY. Practice Writ Service out of jurisdiction -Action to perpetuate testimony Subject-matter of action

Evidence FRITH

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LEADING ARTICLES, &c.

v. OWNERS OF STEAMSHIP LOUISIANIAN. Employer and workman-Accident-Sailor - Intoxication-Return to ship-Unfit for work-Fall from ship. TUCKER. OLDBURY URBAN DISTRICT COUNCIL.-Employer and workman -Accident - Death Claim by dependants-Evidence-Admissi

bility

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COUNTY COURTS. -Sittings of the
Courts
CRIMINAL LAW AND THE JURISDIC.
TION OF MAGISTRATES. Borough
Quarter Sessions - Topics The
Criminal Evidence Act 1898

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Re OWEN; SLATER . OWEN AND OTHERS.- Will Construction Trust for conversion Power to postpone Accumulation-Tenant for life and remainderman Re BUTLER'S WILL; Ex parte METROBOARD OF WORKS AND OTHERS.-Practice-Costs-Compulsory purchase-Funds in court 673 Re THAMES IRONWORKS, SHIPBUILDING, AND ENGINEERING COMPANY LIMITED; FARRER V. THE COMPANY. Company Debenture-holders' action-Receiver and manager ...... 674

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KING'S BENCH DIVISION. HACKNEY FURNISHING COMPANY LIMITED V. WATTS.-Landlord and tenant- Distress - Goods comprised in hire-purchase agreement -Liability to seizure 676 CANTIERE MECCANICO BRINDISINO v. JANSON AND OTHERS; CANTIERE MECCANICO BRINDISINO v. CONSTANT. Insurance - Marine Policy on floating dock.. GOULD (app.) v. CURTIS (resp.). Revenue-Income tax-Deductions

-Life insurance-Double endowment policy

CONSTITUTIONAL LAW Topics Parliamentary Summary.. IRISH NOTES.

GENERAL INTELLIGENCE.

Judicial Character as Made by English Judges -Coming of AgeHeirs-at-Law and Next of Kin Appointments under the Joint

Stock Winding-up Acts-Creditors under Estates in Chancery Creditors under 22 & 23 Vict. c. 35 215 LAW SOCIETIES. Law Society: Annual Report Medico-Legal Society: Annual Dinner

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678 CORRESPONDENCE

The Law and the Lawyers.

Business in the King's Bench.

In this division the work is practically at a standstill. Special and common jury actions set down at the beginning of April last still await hearing, while in the Civil Paper appeals entered in that month are not disposed of. The Crown Paper has not been taken during the present sittings, and, with the Long Vacation upon us in a month and many of the judges still away on circuit, there is little prospect of any improvement in the near future.

Resisters and Protesters.

THAT the attitude of certain sections of the community towards laws that they do not approve has undergone a curious development in recent years cannot be disputed, and, as a leader writer in the Times accurately points out in dealing with what he describes as "the insurance hubbub," the situation "reveals an ominous change of attitude towards law in general which cannot but give concern to all thinking Passive resisters, suffragettes, Finance Act persons." and Insurance Act protesters, no doubt "all highly respectable people," each in their turn glory in their defiance of the law. That strenuous opposition should be offered to proposed measures with which individuals do not agree, and that all proper means should be taken to obtain a desired alteration in the existing law, is only right, but it is the duty of all decent citizens, of whatever rank or station they may be, to obey and assist

in the administration of the laws in force for the

time being. The matter is tersely summed up by the writer we have quoted above in the words: "We cannot pick and choose to suit ourselves what laws we will observe and what we will ignore. If one man is at liberty to defy this Act, another can defy that." To permit this would be to acknowledge a state of anarchy quite impossible in a civilised State.

The Communion Case.

UPHOLDING the Dean of Arches, the Divisional Court, and the Court of Appeal, the House of Lords has now unanimously dismissed the appeal of Canon THOMPSON, and has held that a beneficed clergyman of the Church of England may not repel from Holy Communion members of that Church who have contracted a marriage valid since the Deceased Wife's Sister's Marriage Act 1907. The "lawful cause" alleged in the pleas described the respondents as "open and notorious evil livers," but, as Lord LOREBURN stated, "it is inconceivable that any court of law should allow as lawful cause the cohabitation of two persons whose union is directly sanctioned by Act of Parliament and is as valid as any other marriage within the realm"; and Lord HALSBURY further added, "it is absolutely ludicrous to apply the words 'open and notorious evil livers' to persons the validity of whose marriage has been established by Act of Parliament."

The First Proviso to Sect. 1.

ANY other conclusion than that arrived at by all the courts upon the first point would have been deplorable, but it was then contended that, owing to the first proviso to sect. 1 of the Act of 1907, no clergyman could be admonished for refusing Communion to spouses whose marriage was made lawful by the Act. But it is clear when the whole of the section, including the three provisos, is looked at, that that proviso has reference only to the actual marriage and its incidents, and both Lord LOREBURN and Mr. Justice DARLING have pointed out the extraordinary effect of any other construction, and the results that would ensue if the wide interpretation sought to be placed upon it by the appellant was acceded to.

The Law of the Church.

WE do not suppose that the result of this case will be acceptable to a certain section of the Church of England, who, although ready and willing to accept the emoluments attached to the benefices of the State Church, are only too ready to give the go-by to the fact that the Church of England owes its position and those emoluments to the law of the land. Apparently forgetful of these facts, they denounce the jurisdiction of the civil courts, quite ignoring the position that there is no such thing as the law of the Church apart from the law of the realm. Nobody desires that any man-clergyman or layman-should be compelled to enter upon religious matters save in conformity with his own conscience, but, at the same time, the final result of the case of Bannister v. Thompson will commend itself to all moderate and fairminded people.

66

MOTOR-CARS AS EFFECTS."

It is probable that the case of Re Hall; Watson v. Hall (noted ante, p. 177) will serve a most useful purpose in drawing the attention of practitioners engaged in drafting the will of a person of moderate means to the desirability of making some inquiry as to what the testator desires to be done with any motor-car that he may possess. The will in that case was executed in 1905, and although cars were not in such universal use seven years ago as they are to-day, they were sufficiently numerous to have justified a specific allusion. It is to be noted that in some of the collec

tions of precedents to which reference is always made there are to be found clauses drawn in such a form as would have rendered the litigation in the above.mentioned case needless. Thus, in Key and Elphinstone (9th edit., vol. 2, pp. 766, 767) we find a form of bequest of furniture and personal effects in which the testator gives his "motor-cars as well as horses, carriages, saddlery, and other items of equine furniture. In Re Hall (ubi sup.) the testator's bequest was framed in more ambiguous language. The gift was one of "all my carriages, horses, harness, and stable furniture and effects." The facts showed that the testator's purchase of a car had been attended, as is usual, by the disposal of several horses and carriages, with the result that his stable had been reduced to one horse and two traps. Mr. Justice Parker was unable to feel convinced that the widow, who was entitled to the benefit of this clause, was thereunder justified in claiming the car.

It is less than four years ago that Mr. Justice Eve decided Re Howe; Ferniehough v. Wilkinson (1908) W. N. 223). There the bequest was one of "all my household furniture and effects in [my house] Thornleigh just as it now stands." The testator had in use at the time of his death several cars, garaged in a building constructed by him in the yard. Mr. Justice Eve held that the cars passed under the bequest. This decision is remarkable. It is necessary, however, to note two points not to be deemed subsidiary. One was that the gift contemplated the beneficiary enjoying the house and its contents in its then present condition, and on the evidence it appeared that the beneficiary often occupied a seat in one or other of the cars for the purpose of shopping and calls. Another feature was that the annual expense attending the cars had averaged some £1800. Under these circumstances Mr. Justice Eve thought the cars were an important accessory to the house as it stood, and accordingly they were held to pass under the bequest.

This case is remarkable, then, as showing that "effects" is, in Mr. Justice Eve's judgment, a word of wide enough import to include a motor-car, even though the word is in collocation with what might have been regarded as the narrowing combination of terms, "household furniture." In Re Hall (ubi sup.) the word "effects" occurs again, as does also the word "furniture." Instead of "household furniture and effects," we have, however, to consider" stable furniture and effects." Looking further into and comparing the context of the two cases, it will be seen that in Re Howe (ubi sup.) these "effects" were in the clause containing the gift united to the house, " its appurtenances" (a word itself suggestive), and surrounding land just as it stood. In the recent case the "effects" follow an express gift of "all my carriages, horses, harness, and stable furniture." Whatever opinion may be formed as to the intention either of the draftsman or testator in the earlier case, it seems very plain that the later will was directed solely to horseflesh, and that a mechanical vehicle was quite out of contemplation.

It is notoriously unsafe to attempt to interpret one will with too great reliance on the interpretations applied to other wills, but it is difficult at times to find where the distinctions are founded. There used to be some feeling that in the phrase "household furniture and effects" there was a limitation imposed by the first word on those which followed it, and this principle seems to be recognised in the narrowing use of the words "stable furniture and effects," but it is not easy to find it recognised in Re Howe It may be that the reference to the house as it stood and its appurtenances, and the special circumstances attending the use of the cars, warrant the decision. We find in certain decisions in consonance with this rendering of the phrase that household effects will embrace wines, pictures, lathes, sewing-machines, an organ, and so on, all of which are of a household nature, and will not include guns or tricycles, which are surely of extra household enjoyment. Jewellery has been excluded in Re Hammersley; Heasman v. Hammersley (81 L. T. Rep. 150) from passing under "household furniture and effects," but there were mentioned in the will in that case a series of items, and none of these was ejusdem generis with jewellery. On the other hand, Mr. Justice Stirling held that horses and carriages did fall within the words, although it is not easy to see that they were much more closely allied to those items than was the jewellery.

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It is needless to point out the extreme undesirability of involving persons interested in a will in difficulties and subtleties such as these when the addition of a few plain words would render them impossible. Some solicitors have useful forms of varying natures which can be employed as directing their clients' attention to certain matters upon which it is desirable to have the clearest of clear understandings. When it is sought to ascertain what the testator's wishes are as to specific items, it may be well to bear in mind that there are not only motor-cars, but lathes, appliances, spare parts, accessories, oils, spirit, and the like, the destination of which should be clearly defined. The car is no longer a rich man's toy, but is quite within the range of persons of strictly moderate means, and as such should not be overlooked by those whose duty it is to advise as to the disposition of a person's belongings after death. Under these circumstances something more definite should be inserted in a testamentary bequest in regard to these than the phrase "effects," unless, indeed, the term is used in combination with words which rob it of its latent doubts and ambiguities.

ASSIGNMENT OF DEBTS.

BEFORE the Judicature Act 1873 a debt, like any other chose in action, was not assignable at law, although in equity it could be assigned. By sect. 25 (6) of the above-mentioned Act, however, it was provided that an absolute assignment in writing by the assignor (not purporting to be by way of charge only) of any debt or legal chose in action, of which express notice in writing is given to the debtor or other person from whom the assignor would be entitled to receive such debt or chose in action, shall be effectual (subject to all equities which would have had priority against the assignee if this Act had not been passed) to pass the legal right thereto from the date of such notice, and all legal and other remedies for the same, without the concurrence of the assignor. But if the debtor receives notice of conflicting claims, he may call upon the claimants to interplead, or may pay the money into court under the Trustee Relief Acts. This section therefore prescribes the statutory requirements to be observed before a debt may be effectually assigned at law. In equity, however, debts were always assignable in this sense, that the Court of Chancery would treat the assignment of a debt as if it were an agreement that the assignee should use the name of the assignor in legal proceedings to enforce his rights, and, as Lord Justice Chitty pointed out in Durham v. Robertson (78 L. T. Rep. 438; (1898) 1 Q. B. 765), the assignee of a debt, even where the assignment was absolute on the face of it, had to make his assignor, the original creditor, a party in order primarily to bind him and prevent his suing at law, and also to allow him to dispute the assignment if he thought fit. Since the Judicature Act, however, where the rules of equity and law conflict with reference to the same matter, the rules of equity prevail. Sect. 25 (6) of the Judicature Act therefore enabled an assignee who had complied with its requirements to sue in the King's Bench Courts in his own name to recover the value of the chose in action which had been assigned to him.

The new position created by the Judicature Act, and the distinction between the statutory and equitable remedies, appears to have been first considered in the leading case of Brice v. Bannister (38 L. T. Rep. 739; 3 Q. B. Div. 569). In that case one Gough agreed to build a vessel for the defendant at a price payable by instalments. Gough, being indebted to the plaintiff, before the vessel was completed, gave written directions to the defendant to pay the plaintiff £100 out of moneys due or to become due from the defendant to Gough, and at the time of such notice all the instalments due had been paid by the defendant to Gough. The plaintiff gave the defendant notice in writing of Gough's directions, but the defendant declined to be bound by it, and paid the balance of the price, amounting to about £100, to Gough, the reason being that in the absence of such payment Gough would have been unable to complete the vessel. The Court of Appeal held that there had been a good equitable assignment, although, in the court below, Lord Coleridge, C.J. appears to have decided the point as if it came within sect. 25 of the Judicature Act.

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In this class of case it is often difficult to determine whether the assignment made between the various parties is in fact an assignment, equitable or statutory, or merely a charge on assets. In Durham v. Robertson (sup.) it was held that a mortgage of debts due to the mortgagor, made in the ordinary form with a proviso for redemption and reassignment upon repayment to the mortgagor, is an absolute assignment. In the same case it appeared that a firm of builders wrote to the plaintiffs as follows: Re Building Contract, South Lambeth-road. — In consideration of money advanced from time to time, we hereby charge the sum of £1080, which will become due to us from John Robertson on the completion of the above buildings, as security for the advances, and we hereby assign our interest in the above-mentioned sum until the money with added interest be repaid to you." The plaintiffs gave notice of the assignment to the defendant, and ultimately sued him for the amount which had become due. Now, apart from the Judicature Act, there was obviously a valid equitable assignment, but it was held that the action failed! because the assignment complied with all the terms of sect. 25 (6) except one, which was essential-that it was not an absolute but a conditional assignment. The terms were not absolute because the assignment would come to an end on repayment of the advances and interest, and, as Lord Justice Chitty pointed out, in such cases there was no machinery provided by the Act for the reverter of the legal right to the assignor dependent on the performance of a condition; and the only method provided by the Act for revesting the legal right in the assignor was by a retransfer followed by a notice in writing to the debtor, as in the case of the first transfer of the right.

A point which was not necessary to the decision, but of great importance, was raised incidentally in Durham v. Robertson (sup.). It will be observed that in Brice v. Bannister (sup.) the assignment was of an amount payable out of a sum which might be due or become due, and was therefore not an assignment of an entire debt. The point that this was an assignment of part of a debt was not raised at the Bar nor was it mentioned by the court; but in Durham v. Robertson (sup.) Lord Justice Chitty said: "It appears to me as at present advised to be questionable whether an assignment of part of an entire debt is within the enactment. If it be, it would seem to leave it in the power of the original creditor to split up the single legal cause of action for the debt into as many legal causes of action as he might think fit." This point was the subject of two legal decisions in 1910-viz., Skipper and Tucker v. Holloway and Howard (1910) 2 K. B. 630) and Forster v. Baker (102 L. T. Rep. 522; (1910) 2 K. B. 636). In the first case Mr. Justice Darling held that if there was an existing debt, an ascertained portion of it could be validly assigned. In the second case, however, Mr. Justice Bray came to a different conclusion. It is true that in the second case Mr. Justice Bray had to deal with a more illuminating set of facts. Mr. Justice Bray expressed the opinion that Mr. Justice Darling had not considered the great and unnecessary and, as it seemed to him, unfair burden which would be thrown on a debtor by holding that there could be an absolute assignment of part of a debt within the section, and he instanced the case of a judgment debt upon which leave to issue execution might be applied for and granted to two or more different persons. When this case came before the Court of Appeal the court avoided a decision on the principle, and decided the case on the particular ground that as the original judgment creditor could only issue a single execution upon his judgment, and could not split up the judgment debt and issue separate executions upon the different parts, he could not give to an assignee of a part of the judgment debt a right which he did not possess himself.

While it has been decided that the assignment of an indefinite and unascertained part of a debt is insufficient, there have been conflicting decisions in the cases referred to above with regard to part of a debt; but the better opinion would appear to coincide with that of Mr. Justice Bray in Forster v. Baker (sup.), strengthened as it is by the judgment of the Court of Appeal on the facts in that case, that there cannot be an assignment within sect. 25 (6) of the Judicature Act 1873 of a definite part of an existing debt or other legal chose

in action.

COMMENTS ON CASES.

Weekly Payment to Injured Workman.

was

THE making of a weekly payment by way of compensation to a workman who had been injured by accident arising out of and in the course of his employment gave rise to questions of some importance in two cases which came recently before the Court of Appeal. In the first-that of Standing v. Eastwood and Co. (106 L. T. Rep. 477)—the mate of a barge, who was not engaged by the owners of the barge, but was appointed and paid by the captain of it without communication to the owners, met with an accident on the barge. The bargeowners nevertheless paid him a certain sum per week for more than six months, which was afterwards increased and paid for a longer period. It admitted that the money so paid was provided by an insurance company in which the bargeowners had effected insurances, not only of all the captains of their barges, but also of all the mates thereof. A claim for compensation during total incapacity for work was subsequently made by the mate against the bargeowners. This was resisted on the ground that the relation of employer and workman did not exist between the parties. In the view taken by the learned County Court judge, however, the question to be determined was not whether the mate was or was not a "workman "-i.e., an employee-of the bargeowners, but whether it was open to them to raise that question in the peculiar circumstances of the case. His Honour observed that if it had been open to the bargeowners to raise the former question, he would have held, on the evidence, that the mate was not in their employment. Clearly not; for if Hoare v. Owner of Barge Cecil Rhodes (5 B. W. C. C. 49)|be considered, it is seen that the captain and the mate were in the position of co-adventurers. But what he decided was that there was evidence of an agreement by the bargeowners to pay the mate a certain sum per week during incapacity; and that they were estopped from contending that, at the time of the accident, the mate was not in their employment. A more startling conclusion it would not be easy to arrive at. Little wonder, therefore, that the Court of Appeal reversed the decision of the learned judge, for the reasons stated in the judgment of the Master of the Rolls (Cozens-Hardy). The attempt to maintain that the parties had, by agreement, settled that the mate should be treated as a "workman" of the bargeowners was based on the provisions of sect. 1, sub-sect. 3, of the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58). But the same could never have been designed to convert a person into a 66 workman who would not come within the definition of such which is contained in sect. 13 of the Act. If payment, whether for a long or a short period, of compensation to an injured person, under a mistake as to liability, were to have the effect of giving him a statutory right thereto, it would be a very serious matter. The Court of Appeal have now been afforded the opportunity of emphatically negativing any such absurdity.

Payment Insufficient to Establish Agreement to Pay.

In the other workman's compensation case to which we propose to draw the attention of our readers—namely, Hartshorne v. Coppice Colliery Company (106 L. T. Rep. 609)—a weekly payment had likewise been made by employers. But it had been made to a person who was, in fact, their workman. The question, therefore, was whether such payment sufficed to establish that an agreement to make it had been come to by the employers, a memorandum of which was capable of being recorded pursuant to sect. 9 of the second schedule to the Act of 1906. In the opinion of the learned County Court judge there was an agreement of that nature. But a contrary decision was pronounced by the Court of Appeal. In a case, which was before the Court of Appeal last year, of Phillips v. Vickers, Son, and Maxim (105 L. T. Rep. 564; (1912) 1 K. B. 16), a somewhat similar point was raised to that in Hartshorne's case (ubi sup.). And there it was laid down in unequivocal terms that because an employer spontaneously performs his statutory obligation to pay compensation to an injured workman, when he feels that the same is actually payable, that does not justify the court in inferring that an agreement to do so has been entered into. Much less does it warrant the inference that there has been an agreement of the par

ticular description that was sought to be enforced in Hartshorne's case (ubi sup.). An implied agreement of a kind there may be, as was pointed out by Lord Justice Fletcher Moulton in Phillips' case (ubi sup.). But it is limited to that. (See, further, Shore v. Owners of Steamship Hyrcania, 4 B. W. C. C. 207.) The decision in Jones v. Great Central Railway Company (4 Minton-Senhouse's W. C. C. 23), although cited and to a certain extent relied upon, has obviously no real application to the question which was before the court in the present case.

Variation of Marriage Settlements.

UNTIL the passing of the Matrimonial Causes Act 1859 (22 & 23 Vict. c. 61), the court had no jurisdiction whatever to order a variation of an existing marriage settlement as a consequence of matrimonial proceedings. All that the court could do was to order a settlement of a guilty wife's property for the benefit of the innocent party and the children of the marriage, or either or any of them. That appears clearly enough from what was laid down in Norris v. Norris and Gyles (31 L. T. Rep. O. S. 139; 1 Sw. & Tr. 174), where sect. 45 of the preceding Act of 1857 (20 & 21 Vict. c. 85) was considered by the full court. It was held that the court had no power to interfere with marriage settlements. But sect. 5 of the Act of 1859, power was expressly given to the court, “after a final decree of nullity of marriage or dissolution of marriage," to inquire into the existence of antenuptial or post-nuptial settlements, and to make orders with reference to the application of the whole or a portion of the property settled. It will be observed, however, that that section only relates to cases of nullity or divorce. In the recent case of Loraine v. Loraine and Murphy (106 L. T. Rep. 644), which came before the learned President of the Divorce Division (Sir S. T. Evans), the question raised was whether the power so conferred on the court authorised it to deal with property derived by a divorced wife under a will that contained a clause in restraint of anticipation and also one for forfeiture on alienation. It appears to be well established that a clause against anticipation in a settlement does not oust the jurisdiction of the court: (Constantinidi v. Constantinidi and Lance, 91 L. T. Rep. 273; (1904) P. 306; see also Churchward v. Churchward, 102 L. T. Rep. 862; (1910) P. 195). And, as the learned President remarked, it would be a curious state of the law if the court could not deal with property coming to one of the parties under a will containing a similar clause. True it is that in Michell v. Michell (64 L. T. Rep. 607; (1891) p. 208) the Court of Appeal decided that there was no power to order a resettlement of property settled by a marriage settlement on a wife subject to a restraint upon anticipation. But that was by reason of the fact that the application there was for an order for a resettlement on the wife's non-compliance with a decree for restitution of conjugal rights. And as we have already indicated, sect. 5 of the Act of 1859 applies only to cases of nullity and divorce. The case of Michell v. Michell (ubi sup.) is of peculiar interest because in giving their judgments therein the learned judges of the Court of Appeal took the opportunity of discussing at length the history of the legislation and the authorities as to the power possessed by the court in regard to the variation of marriage settlements. But direct authority was not wanting for the order which Sir S. T. Evans was asked to make. It was to be found in the decision of the court in Milne v. Milne and Fowler (25 L. T. Rep. 274; L. Rep. 2 P. & M. 295). In that case the court made an order directing the trustees of a will which contained a clause for forfeiture on alienation to apply the life income of a divorced wife derived under that will in favour of the husband and the children of the marriage. There seems to be no question, therefore, that the order asked for could properly be made in the present case. The contention that the court was being asked to alter the terms of the will seems entirely fallacious. It was no more than an application for an order with respect to property that devolved under a will. The alienation would thus become compulsory, and not merely of a voluntary character as contemplated by the will itself.

WHARTON'S LEGAL MAXIMS.-With Observations and Cases. Third Edition. Price 5s., post free.-HORACE Cox, "Law Times" Office, Windsor House, Bream's-buildings, E.C. [ADVT.]

THE CONVEYANCER.

Purchasers from Donees under Voluntary Settlements.
THE recent decision of the Court of Appeal in Re Hart;
Ex parte Green (ante, p. 175), reversing the decision of the court
below (132 L. T. Jour. 536; (1912) 2 K. B. 257), to which we
eferred last week, will be a great relief to persons who deal in
stocks and shares as well as to conveyancers, and we make
no apilogy for considering the case again. In orderto understand
the decision it is necessary to premise that by sect. 47
of the Bankruptcy Act 1843 it was enacted, in effect, that
any settlement, conveyance, or transfer of property, otherwise
than in consideration of marriage, or in favour of a bond
fide purchaser or incumbrancer for value, or made on a wife
or children of the settlor of property accrued to him after
marriage in right of his wife, should, if he became bankrupt within
two years after the date of such settlement, be void against the
trustee in bankruptcy, and should, if the settlor became bankrupt
subsequently within ten years after the date of such settlement,
also be void against such trustee, unless the claimants under the
settlement prove that the settlor was at the time of making
thereof able to pay all his debts without the aid of the property
comprised in such settlement, and that the interest of the settlor
in such property had passed to the trustee of such settlement on
the execution thereof. And by sect. 48 transactions amounting
to fraudulent preferences were rendered void against the trustee in
bankruptcy if the debtor was adjudicated bankrupt on a petition
presented within three months after the transaction, but that
section was not to affect the rights of any person making title in
good faith and for valuable consideration through or under a
creditor of the bankrupt. And sect. 49 protects bona fide trans-
actions by or with the bankrupt for valuable consideration,
provided such transactions take place before the date of the
receiving order, and the person (other than the debtor) with whom
they are entered into has not at the time of the transaction notice
of any available act of bankruptcy committed by the bankrupt
pefore that time. The facts in Re Hart; Ex parte Green were
shortly as follows: On the 14th Oct. 1909 the debtor trans-
ferred certain fully paid up shares in a limited company to
his daughter, on the face of it for a nominal consideration,
and, as the court held, voluntarily. On the 17th Feb. 1910
a creditor obtained two judgments against the debtor for two
sums amounting to about £480, and on the 31st March 1910
the debtor committed an act of bankruptcy by not complying
with a bankruptcy notice based on such judgments, and on the
22nd April 1910 a receiving order was made against him, followed
by adjudication and the appointment of a trustee. In the
meantime, on the 13th April 1910 the daughter sold and trans-
ferred the shares for value to a purchaser, who bought them
in good faith and without notice of the act of bankruptcy, and
it was held by Mr. Justice Phillimore that the sale and transfer
to the purchaser was void as against the trustee, on the ground
that his title had accrued prior to the date of such transfer.
The learned judge admitted that it was a hardship that pur-
chasers under such circumstances should have no protection,
but, as pointed out by him, they were in the same position as
others who buy chattels from the apparent owner of them
without a title to them, and that the case was not so hard as
that of a pawnbroker taking chattels which are pledged by
a thief. His Lordship thought that the language and reason.
ing of the judges in Re Carter and Kenderdine's Contract
showed that they were of opinion that directly an act of
bankruptcy had been committed no subsequent transfer could
be upheld, even though it were bona fide and for value.
The Court of Appeal, however, in a reserved judgment took a
different view. The Master of the Rolls said there was no doubt
that the title of the trustee related back to the act of bank-
ruptcy on the 31st March. He also referred to the argument
that sect. 47 of the Bankruptcy Act 1883 contained no such saving
of the rights of a purchaser for value without notice as is found
in sect. 48 (2) or in sect. 49. But his Lordship pointed out that in
Re Brall; Ex parte Norton (69 L. T. Rep. 323; (1893) 2 Q. B.
381), which was approved in Re Carter and Kenderdine's Contract
(76 L. T. Rep. 476; (1897) 1 Ch. 776), it was decided that the

66

expression "void" in sect. 47 must be construed as meaning
'voidable" and not absolutely void, and that therefore a bonâ
fide purchaser for value from the donee under such a voluntary
settlement had a good title against the trustee in bankruptcy,
even if he purchased with notice that the donee claimed under a
voluntary settlement; and, as pointed out by Lord Justice
Vaughan Williams (then Mr. Justice Vaughan Williams) in that
case, the moment it is assumed that the settlement is not void
ab initio, all those authorities apply which decide under the Act
27 Eliz. c. 4, that a purchaser for valuable consideration from a
person making title under a voluntary conveyance relates back so
as to prevent the original conveyance being a voluntary con-
veyance within the meaning of the Act: (see May on Fraudulent
and Voluntary Conveyances, 3rd edit., by W. D. Edwards, p. 252
et seq.). The Master of the Rolls referred to the fact that sect. 47
did not vest the property in the trustee in bankruptcy (Sanguinetti
v. Stuckey's Banking Company, 71 L. T. Rep. 72; (1895) 1 Ch. 176),
and he pointed out that, the settlement being voidable only, the
trustee must apply to the court for a declaration to that effect; he
is in the same position as any other litigant who asks for a declara-
tion that a deed is voidable. The Master of the Rolls considered it
was settled law that, however good the cause of action might be,
the plaintiff could not succeed after there had been any subsequent
transaction for value and without notice; and he pointed out that
no purchaser on the Stock Exchange would be safe if the
purchaser in the present case was to be deprived of these shares.
He also referred to the fact that the Court in Bankruptcy is a
court of equity, and that those courts had for centuries refused
relief against a purchaser for value without notice in whom, or
in a trustee for whom, the legal title is vested: (Wilkes v.
Bodington, 2 Vern. 599). As to whether the trustee could claim
against the daughter the purchase money she had received, his
Lordship expressed no opinion. Although Re Hart was a case of
shares, no doubt the same principles would apply in the case of
land, though in the latter case a purchaser might obtain a certain
amount of protection, such as a statutory declaration that the
settlor had not committed an act of bankruptcy, which would not
be open to him in the case of shares. It would be convenient if
the law as pronounced by the Court of Appeal in Re Hart were
confirmed by the Legislature in the projected new Bankruptcy
Act.

The Rule in Shelley's Case.

NOTWITHSTANDING the numerous decisions upon the rule in Shelley's case, it seems still to be a moot point whether it applies to the case of a devise of freehold land to A. for life, and after his death to such person or persons as shall then be his heir or heirs-at-law; in other words, whether in such a case A. would take an estate in fee simple, or whether his heir-at-law would do so as persona designata. In Evans v. Evans (67 L. T. Rep. 152; (1892) 2 Ch. 173) it was decided by the Court of Appeal that where by a deed of conveyance lands were limited to the use of E. and his assigns during his life without impeachment of waste, with an ultimate limitation to the use "of such person or persons as at the decease of the said E. shall be his heir or heirs-at-law and of the heirs and assigns of such person or persons," the rule in Shelley's case did not apply, and that E. took merely a life estate, with a contingent remainder in fee to the person or persons who at his death answered the description of his heir or co-heirs-at-law. In that case the additional words "and of the heirs and assigns of such person or persons" occur, which in the opinion of Lord Lindley (then Lord Justice Lindley) made the case still plainer; but his Lordship seemed to think that the result would have been the same without such words. He also pointed out that if the word "heir" alone had been used in the singular, the case would have been covered by Archer's case (1 Rep. 66 (b) and not by Shelley's case. The rule is one of law and not of construction, and, as pointed out in Van Grutten v. Foxwell (77 L. T. Rep. 170; (1897) A. C. 677), "the question now in every case must be whether the expression requiring exposition, be it heirs or heirs of the body,' or any other expression which may have the like meaning, is used as the designation of a particular individual or a particular class of objects, or whether, on the other hand, it includes the whole line of succession capable of inheriting." The following cases favour the view that the rule in Shelley's case

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