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The following are, as we are informed, the circumstances attending the recent petition for the winding-up of the Law Property Assurance Society. Having its policies largely cross assured in the European and Albert Offices, their failure necessarily involved the society in very serious losses, and determined the directors to take no more new business, and merely to work out the existing policies. Upon this a petition was presented on the ground that the society had ceased to carry on business. As a winding-up would be attended with ruinous loss and delay to their policyholders, the directors felt it to be their duty to resist the application, and the petition was ultimately dismissed on condition that the directors should, with all diligence, endeavour to retrieve the disastrous condition into which the society had been plunged by circumstances they could not control, This they are now doing, with what success remains to be seen.
CON TEN TS.
EUROPEAN ASSURANCE ARBITRATIOX.
Cumpany -- Winding up - Contributory
LEADING ARTICLES, &c.
insolvency of principul-Principal and
281 YORLEY , WHITE
Plea that defendant is not executor-
281 SHERRATT , MOLSTFORD
WIII -- Custor – 01ft to testator's nephews and nieces
284 V.C MALINS' COURT. DAVIES . FOWLER
Will-Construction Specific legacy...... 285 Ke KING'S LEASEHOLD ESTATES
Landlord and tenant-Leasehold inte. re t-Yes y tenancy
289 WHITEHEAD r. WRITEHEADSpecific agency-Dividend-Apportion. ment Act 1870
COURT OF EXCHEQUER.
293 GRAY Executors, &c.) v. FOWLER
Vendor ant purchaser-Contract for
Agent not attorney or pructor............ 312
Frou inquiries we have made we believe it to be the intention of Government to leave vacant the Vice-Chancellorship recently filled by Sir John Wickess. The work of the court, it is reported, is to be transacted by the LORD CHANCELLOR until the sitting of Parliament, when his Lordship will be wanted in the House of Lords. We need hardly say that by the adoption of this course the reasonable expectations of the Bar are disappointed, and our highest judicial functionary is placed in an anomalous position. The rage for economy is too strong to allow us to entertain the hope that the report of this arrangement is unfounded. Lord SELBORNE'S eminent capacity for the work of a Judge of first instance is beyond question, but the combination of two offices in a single individual is generally inconvenient. Perhaps, however, with a Prime Minister who is also Chancellor of the Exchequer, and a Lord Chancellor who is also a Vice-Chancellor, we shall be able to devote sufficient funds for the proper conduct of prosecutions at the assizes. An economy in one direction ought certainly to produce some corresponding improvement in the same department.
TO READERS AXD CORRESPOXDENTS ......... 1
4 LAW LIBRARY
Notes of New Decisions
Winding up Acts ....
10 Articled Clerks' Society
13 BIRTH3, MARRIAGES, AND DEATHB ......... 14
The Law and the Lawyers.
A COMPLAINT against a railway company refusing to forward coal from the pit's mouth for a private consumer is what might be looked for in the existing state of things on the coal market; but that the public are powerless as against the companies is sufficiently plain. The company, however, concerning which a correspondent writes to the Times, has based its refusal on a very un. popular ground, namely, that to carry for private persons would give offence to the colliery owners. Had they simply declined to carry coals for a private icdividual they would have been perfectly safe in giving no reasons. It has been twice held that neither at common law nor under the Railway and Canal Traffic Act is a railway company bound to carry coal even for coal merchants, and
that it is quite open to such company to carry only for colliery The County Courts Admiralty Jurisdiction Acts seem to have
owners. Of course if a company professes to carry coal generally worked well, and to have conduced to the settlement of proceed they will not be able to select the individuals for whom they will ings outside the legal tribunal. In 1872, 354 suits were entered,
carry. They may elect to carry for a particular class, and to carry and 141 vessels arrested, but only 111 final decrees made. In only a particular kind of goods, and, having done so, are not comforty-six cases the Judge was assisted by nautical assessors, and
pellable to go beyond their undertaking. This, perhaps, is one the total amount claimed was £35,536. The amount of attorneys'
more very forcible argument in favour of the purchase of railways costs allowed was £1418. The amount of fees paid to the court
by the State. fund was £588 ; to the registrar, £563 ; and to the high bailiff, £308. There were fifty-six suits pending at the beginning of the The Judicial Statistics for 1782 give us the following results of the year, but it is believed that a large number of these have been
equity business transacted in the County Courts : Total number of settled. There have been ten appeals, two warrants of execution have been issued, £176 have been realised, and £24 incurred as
equitable suits or proceedings, 683 ; suits for the administration of
estates, 225; for the execution of trusts, 27; for foreclosure or recosts of sale.
demption, or for enforcing any charge or lien, 96; for specific per
formance, 89; for delivery up or cancelling any agreement for We give elsewhere an obituary notice of Sir John Wickers, who sale or purchase, 5: for the dissolution or winding.up of a partdied last Thursday week. He had been a Vice-Chancellor for a nership, 55. The number of notices or petitions filed, were as folcomparatively short time, but during that time he gained a lows: For the appointment or removal of trustees, 2+; for any reputation for capacity which his career at the Bar led the other purpose under Trustee Acts, 54; for the maintenance or Profession to expect. We learn from practitioners in his court advancement of infants, 6; for partition, 21; for injunctions, 30.
VOL LVI.-NO 1596.
Trustees availed themselves of sect. 24 of the Act of 1867 in 51 instances. The total amount involved in these proceedings was £108,491; and the amount of attorneys' costs allowed was £5199. The amount of the fees paid to the Consolidated Fund was £1066; to the registrars, £1817; and to the high bailiff, £628. There were. 244 suits pending on the 31st Dec. 1872. There were 6 appeals and 2 committals for contempt; and six warrants of execution or possession were issued.
the attorneys agreed upon the costs in many cases in the City Court which are not included in the return. only nine equity suits in this court for an amount of £1465, the amount of attorneys' costs allowed being £79.
A MATTER was recently before the Judge of the Keighley County Court which has excited public indignation, and which, if any. thing can, ought to arouse the legal Profession to action in the assertion of their rights to be the only agents of the law and the only persons concerned in its administration. Encouraged by the impunity which attends their proceedings, “ law agents” located in London, who advertise that they will transact all the business of a solicitor for reduced remuneration, are now engaged in carrying out a system of plunder by means of threats couched in technical terms and remitted to poor debtors. This is the usual form of the threat : “ It having become evident from your silence that extreme measures will be required to recover the debt against you at these offices, we have to intimate that on the expiry of three days from your receipt of this notice the necessary steps will be taken towards obtaining a warrant of execution against your goods and chattels, failing which a warrant of imprisonment for contempt of court will be applied for, the expense of all which will fall on you to pay. No further notice of any kind can be sent.” Doubtless, in the majority of instances, this threat has its designed effect, and whether he have any defence or not, the debtor will probably be induced to pay. In this instance the Judge said that this debt-collecting firm had themselves committed a contempt of court. But what of that? A recent case has decided that the County Court has no power to cite persons before it and punish them. The only remedy is to be found in energetic action on the part of the Profession to induce Parliament to stamp out these unqualified practitioners. Trade cooperation for collecting debts is unobjectionable, respectable solicitors being usually employed to take legal proceedings, but the practice of these agents who by threats and abuse of process extort from defendants and debtors the costs which their scale of pay does not enable them to obtain from their employers, will cause the County Courts to become a nuisance. It is the duty of the Profession to protect the public as well as themselves.
THE WORK IN THE COURTS OF BANKRUPTCY. OUR readers will be interested to know what has been the work transacted in the various courts of bankruptcy throughout the country, and the Judicial Statistics for 1872 furnish this information, with some instructive comments on the working of the Act of 1869. In 1870 there were 1351 bankruptcies, 2035 liquidations by arrangement, and 1616 compositions, making a total of 5002. In 1871 there were 1238 bankruptcies, 2872 liquidations, and 2170 compositions, giving a total of 6280. Last year there were 933 bankruptcies, 3694 liquidations, and 2208 compositions, giving a total of 6835. It will thus be seen that the bankruptcy business has steadily increased, bankruptcies declining, and liquidations and compositions rising in public favour.
The proportion of costs incurred in realising the estates of insolvents has been about 30 per centum, made up thus ; 16 per cent. for law costs, including stamps for duty and court fees ; 6.50 trustees' remuneration, 5.25 incidental expenses; that is for 1871 giving total costs, 27.75 per cent. ; but in 1872 the law costs were 18:50 per cent., and the total expenses of realisation 30:75. It is remarked that where creditors have availed themselves of the powers and facilities given them by the Act, the results have been highly satisfactory. As an illustration, one case is mentioned as occuring in 1872, where assets amounting to £11,167 14s. 2d. were realised at a total cost of £356 13s. 4d., of which the solicitor received £129 13s. 11d. and the trustee £155 Os. 10d.
The compositions made by debtors with their creditors have unfortunately decreased in amount. In 1870, '71, and ’72 respectively there were 94, 172, and 262 respectively at 1s.; 255, 428, and 490 exceeding 1s., and not exceeding 2s. 6d. ; 606, 647, and 586 exceeding 2s. 6d., and not exceeding 5s.; 345, 298, and 292 exceeding 5s., and not exceeding 7s. 6d. ; 482, 288, and 242 exceeding 7s.6d., and not exceeding 10s.; 144, 107, and 83 exceeding 10s., and not exceeding 15s. ; 14, 10, and 7 exceeding 15s., and under 208.; and 57, 50, and 38 at 20s. in the pound. The proportion of compositions over 7s. 6d. in the pound to compositions at or under 2s. 6d. in the pound in 1870 was as two to one, and in 1872 as one to two.
To show the operation of the provisions relating to debtor's summonses, which, we conceive, largely accounts for the decrease in common law business, we may cite some figures. In 1872 1626 debtor's summonses were issued in the London Court, and 1448 in the County Courts-total, 3074. In 1871 1456 were issued in the London court, and 1529 in the County Courts-total, 2985.
It has been recently contended by correspondents that the provisions of the Act relating to the close of a bankruptcy apply equally to liquidation by arrangement. We have disposed of the notion, and it is remarked in the statistics : “ The provisions with respect to the close of the bankruptcy, the discharge of a bankrupt, the release of the trustee, and the audit of accounts by the comptroller, do not apply; but the close of the liquidation may be fixed, and the discharge of the debtor and the release of the trustee muy be granted by a resolution of the creditors in general meeting, and the accounts may be audited in pursuance of such resolution, at such time, in such manner, and upon such terms and conditions as the creditors think fit. In 1872, in the London court, 1393 petitions for liquidation were filed, 492 resolutions registered, and 157 resolutions for discharge. The gross amount of debts was £3,810,395; gross value of estate £933,001; and gross amount of stamp duty £4337. In the County Courts for the same year, and the same purposes, the figures were 5354, 3202, 1068; £4,617,379; £1,723,252, and £14,684. In the London courts in the same year 512 resolutions for composition were registered, the gross amount of debts being £1,175,635; the gross value of the estate £341,679, and the gross amount of stamp duty £2661. In the County Courts the figures were respectively 1696, £2,034,363; £694,519; and £5754.
The appellate business has been as follows:-In 1872, 68 appeals were presented to the Court of Appeal in Chancery; in 39 the decision of the court below was affirmed, in 12 reversed, and in 2 varied; whilst 17 were withdrawn or arranged. To the Chief Judge 74 appeals were presented; in 30 the judgments were affirmed, in 24 reversed; and 2 were varied, I remitted. 2 arranged, 14 withdrawn. These figures exclude pending appeals.
The number of bills taxed in 1872 was 11,814; the gross amount being £306,135 19g. The amount struck off on taxation was £51,440 Os. 6d.
LORD Romilly, Lord WESTBURY's successor in the European Assurance Arbitration, commenced his first public sittings on Monday. During the first few days his Lordship was engaged in hearing cases in which the official liquidators impeached transfers of shares made shortly before the winding-up of the society, on the ground that the transferees were improper persons to be placed on the register. Judgment was reserved in all these cases except one (Joshua Murgatroyd's case), in which Lord Westbury had required the transferor to low that the transferee was a proper person to be placed on the register, and it was now held that this requisition had not been complied with. One remark that has fallen from Lord Romilly, is to be especially noticed. He has stated that the principles which have already been established will still be applied in all matters of the arbitration. With regard to the alleged improper transfers, it is well known that Lord WESTBURY laid down most stringent rules as to the liability of the transferor, especially in Walton Williams's case (Law Times, European Reports, p. 125). Lord Romilly has intimated his opinion that the judgment in this case covers Phillips's case, where a medical officer of the society in August 1870 directed his solicitors to dispose of his 590 shares. They went to a share dealer, who gave them the name of GILBERT mentioned in Williams's cases (sup.) This name was sent in to the society and approved, and the transfer was executed in Nov. 1870, and registered. The petition to wind-up the society was not presented until June 1871, and the order to wind-up was not made until Jan. 1872; in the winding-up, the official liquidators placed the name of the transferor on the list of contributories. Judgment has been reserved in these transfer cases until the next sittings, when no doubt the principles applic. able to them will be still further elucidated.
The City of London Court transacted a large amount of business last year, and is credited in the Judicial Statistics with one-fourth of the admiraity suits of the County Courts. There were 151 suits entered, thirty-nine vessels were arrested, final decrees were given in fifty-six cases, in thirteen cases the Judge was assisted by nautical assessors, and the amount claimed was £12,150, and the amount of attorneys' costs allowed £1513. It is remarked in the official returns that in many instances the attorneys agreed upon the costs, and settled the cases out of court, and these are not included in the return. The sum allowed in all the other County Courts for attorneys' costs in respect of 203 more cases than were entered at the City of London Court was £65 less than the above amount, which is a curions circumstance, and more curious still when taken in connection with the statement that
SUPREME COURT OF JUDICATURE ACT.
(Continued from page 447.)
Part IV.-TRIAL AND PROCEDURE. The most important part of the Act, in so far as it affects the greatest number of our readers, is that which relates to trial and procedure. This is the part of the Act, under the authority of which the rules of practice of the new courts are to be framed, and
by virtue of which a system of pleading new to most pleaders of complete power to deal with all these matters, and may be looked the present day is introduced. Moreover, this part provides for upon as a satisfactory solution of a difficulty that has long the establishment of district registries, by means of which all presented itself to the Profession. In cases of reference to or causes may be carried on down to trial in the country, without the trial by referees, the referees will be officers of the court, and necessity of the proceedings being brought up to London, except in will have such authority as may be prescribed by rules, or by such cases as require the direction of the court before trial. The the order of reference or trial; the rules will probably give mode of trial of certain causes is also regulated.
all the powers of a Judge for the purpose of each reference. The It has long been a subject of complaint that the system of arbi- report of a referee upon any question of fact on any trial, such tration has grown into an abuse, and when the expense of tbis report being made on a reference of either the whole or a portion of mode of settling disputed questions is considered, it will be well the cause, will be equivalent, unless set aside by the court, to the understood that some change would be made in an Act whose verdict of a jury (sect. 58). This again is an important provision. object is to facilitate the course and lessen the expense of litiga- Hitherto, on à cause being referred by order of court, it was tion. Even the powers given to the Judges to refer causes to referred to the final arbitrament and award of the person selected, the arbitration of the masters has always been looked upon as a and his award was binding and could not be set aside if in regular great boon, and it has only been regretted that the multifarious form. The court could only enforce it. Now, however, the report duties of those officers have not enabled them to dovote more of the referee will be subject to revision by the court, and if any time to this part of their duty. Many schemes have been pro- palpable mistakes have arisen, they may be corrected. In conposed to meet this difficulty, but the one that has been adopted in nection with this matter, it may be well to call the attention of our the Act was the one which received the greatest approval. It is readers to the fact that this system of reference has long been in now provided that there shall be attached to the Supreme Court existence in the High Court of Admiralty. In that court, whenpermanent officers, to be called official referees, for the trial of ever any question of amount has to be ascertained, it is not such questions as shall under the provisions of the Act be directed found by the court itself, but it is referred to the registrar of the to be tried before such referees : (Part V., sect. 83.) The number court assisted by merchants to ascertain. When this has been and qualifications of the persons to be so appointed from time to done, the registrar reports to the court the amount, and, if no time, and the tenure of their offices, is to be determined by the dispute as to the accuracy of the report arises, the court makes a Lord Chancellor, with the concurrence of the presidents of the
decree in accordance therewith. If, however, the amount is disdivisions of the High Court of Justice or a majority of them (of puted, an appeal lies to the court by way of objection to the regiswhich majority the Lord Chief Justice of England shall be one), trar's report, and the matter is gone into before the court. It and with the sanction of the Treasury. These official referees frequently happens that in assessing damages important questions will perform the duties entrusted to them in such places-whether of law arise as to the principles on which damages are to be given, in London or in the country—as may from time to time be directed and it is not too much to say that the tribunal formed by by any order of the High Court or of the Court of Appeal, and all the registrar and merchants has been found to work most proper and reasonable travelling expenses incurred by them in the satisfactorily. It is not uncommon, also, for questions relating discharge of their duties are to be paid by the Treasury out of to the priority to which several claimants against a fund in moneys to be provided by Parliament. Subject to any rules of the registry are entitled are referred to the registrar with court, and to such right as may now exist, to have particular cases an equally satisfactory result. The power of review has a natural submitted to the verdict of a jury, any question arising in any tendency to make these officers more careful in their decisions. cause or matter (other than a criminal proceeding by the Crown) In addition to the powers given to the court by the Act with before the High Court or the Court of Appeal, may be referred by respect to proceedings before referees and to their reports, the the court, or by any divisional court or Judge before whom it may be court will have all such powers as are given to any court whose pending, for inquiry and report to any official or special referee, jurisdiction is transferred to the High Court with respect to and the report of any such eferee may be adopted wholly or par- references to arbitration and proceedings before arbitrators, and tially by the court, and may (if so adopted) be enforced as a judg. their awards by the Common Law Procedure Act 1854. Thus the ment by the Court (sect. 56). This section gives only a limited Act, whilst instituting the new tribunal of reference, does not power to the court to refer any questions subject to the right of take away the power of referring any cause to the final arbitratrial by jury; this power is, however, increased by the following tion of any person selected by the parties, and further protects section (sect. 57), in reference to certain matters. After giving the rights of parties so referring matters in difference out of power to refer any question of fact or of account by consent of court. There is nothing in the Act which will any more than the parties, it is enacted that in any cause requiring any prolonged before hinder awards being made rules of court and being examination of documents or accounts, or any scientific or local enforced. The main objection to the existing state of things has investigation, which cannot in the opinion of the court or a judge always been that if a cause was referred, the decision of the arbi. conveniently be made before a jury, or conducted by the court trator was in all cases final, or at least there was no power in the through its other ordinary officers, the court or Judge may, at any courts to go into his reasons so as to upset the award if he had time and without the consent of the parties, order any question proceeded on an erroneous ground. This is now remedied by the or issue of fact to be tried either before an official referee, to be system of official referees, who will be obliged when reporting appointed as before mentioned, or before a special referee to be to the court to show their reasons for their decisions, and at the agreed on between the parties, and any such special referee so same time any person desiring to have his cause finally settled by agreed on shall have the same powers and duties and proceed in the an arbitrator may do so by referring it so that the arbitrator's same manner as an official referee. All trials before referees are to award shall be final, and not capable of review by the court. be conducted in the mode prescribed by rules of court and, subject The establishment of district registries is next treated of by the thereto, as the court or Judge ordering the same may direct.
Act, but this must be reserved for our next issue. The mode of trial is to some extent provided for by the rules (34 and 35) in the schedule attached to the Act, one of the most im
SEARCHES, INQUIRIES, AND NOTICES. portant provisions of which is that the referees shall proceed with the trial in open court, de die in diem, in a similar manner as in
(Continued from p. 446.) actions tried by a jury. These are most important provisions, both
THE YORKSHIRE AND KINGSTON-UPON-HULL REGISTRIES. by giving the courts the power, long wanted, to enforce references The Acts relating to the different Ridings are as follows :-2 & 3 in causes which can only be satisfactorily settled in that way, and Anne, c. 4; 5 Anne, c. 18; and 6 Anne, c. 35, relating to the West in instituting arbitration courts, which shall sit without the expen- Riding, the registry office being at Wakefield ; 6 Anne, c. 35, sive and harassing adjournments which now take place, for the relating to the East Riding and Kingston-upon Hull, the registry convenience, not of the parties, or as a rule of their attorneys, but office being at Beverley; and 8 Geo. 2, c. 6, relating to the North of the arbitrator and counsel concerned. It will be noticed that Riding, the registry office being at Northallerton. the power of reference given to the courts by the two sections The provisions of the 2 & 3 Anne, c. 4, are somewhat similar to (sects. 56 and 57), relates to distinct matters. The former section those of the Middlesex Registry Act (7 Anne, c. 20), to which we gives power to the court to refer a cause for the purpose of inquiry have recently referred. The section (1) avoiding unregistered and report by the referee, but not for final decision; for instance, deeds, conveyances, and wills, is in nearly the same language, and if in the conrse of any cause a question arises as to the condition those (7, 8, and 17) relating to the memorial and its contents, are of any place or thing, the court may refer the question to a referee, similar, with the exception that it is to be directed to the registrar whose report will guide the court in its decision ; a ship may be of the office and proved before him or his deputy, and the heirs, damaged in collision, and it may be important to ascertain in executors, or administrators, of the grantor, grantee, or devisee, what direction the blow was struck, by an inspection of the ship are not empowered to sign it. A memorial of deeds, conveyances, itself; this would be a proper question to be decided by the and wills, made and executed or published in London, or in any report of an official referee. Again, the issue of fact having been other place not within forty miles of the West Riding, are to be decided, a plaintiff may become entitled to damages, the amount registered, if proved before a Judge at Westminster or a Chancery of which can be better ascertained by a referee than by a jury. commissioner (sect. 18). Memorials of wills are to be registered The latter section (sect. 57), on the other hand, provides for cases within six months of the death of a testator dying within the where the whole question would best be decided by arbitration, kingdom of England, dominion of Wales and town of Berwick. and gives power to refer for trial causes in which the sole question upon-Tweed, and within three years of the death of a testator at issue between the parties is one of amount, or a technical point dying upon or in any parts beyond the seas (sect. 20), and in case relating to the construction of machinery, or relates to land of the will being contested, or other inevitable difficulty, without boundaries or similar matters. The two sections together give the wilful neglect or default of the devisee or other interested
person, it is to be sufficient if the memorial be registered within six months of his attainment of the will or the probate thereof, or removal of the impediment (sect. 21). No time is, however, fixed after which a purchaser would be safe, as is limited by the Middlesex Registry Act.
The 5 Anne, cap. 18, declared that it should be sufficient that bargains and sales be enrolled in the Registry Office, and provided (sect. 10) for the entry of satisfaction in cases where mortgages had been registered, and subsequently paid off.
The provisions of the 6 Anne, cap. 35, relating to the East Riding and Kingston-upon-Hull Registry, are also similar to those of the Middlesex Registry Act, and provision is made for the proof of the memorials in London, or at places forty miles distant from the East Riding, similar to that made by the West Riding Act. The provisions for registering memorials of wills are similar to those of the Middlesex Registry Act, with the exception that nothing is said about the concealment or suppression of a will; the times for registering a memorial of a contest or other impediment are limited to six months after his death, where the testator dies in Great Britain, and three years where the testator dies elsewhere; and there is no protection given to purchasers by effluxion of time. The Act also provides for the enrolment of deeds of bargain and sale in the Registry Office, and that in all such deeds so enrolled, the words grant, bargain, and sell shall be construed in all Courts of Judicature to be the usual covenants for title.
The same Act, after reciting the 2 & 3 Anne, c. 4, and 5 Anne, c. 18, enacts, that after the 29th Sept. 1708, all and every the
provisions, clauses, articles, matters, and things in that present Act contained, concerning the East Riding, and the town and county of the town of Kingston-upon-Hull
, and not provided for or contained in the recited Acts, or either of them, should extend unto and affect all honors, manors, lands, tenements, and hereditaments situate, lying, and being within the West Riding (the mortgage or purchase whereof should exceed the sum of 501.), as effectually as if the same and erery of them were respectively inserted and contained in the recited Acts (sect. 34).
The provisions of the 8 Geo. 2, c. 6, are very similar to those of the Middlesex Registry Act; there is, however, an omission, in the section (11), which declares the mode in which a memorial is to be attested, of the words “ one whereof to be one of the wit. nesses ; as the section stands, it would, at first sight, appear that the memorial is to be attested "by two witnesses to the execution of such deed or çonveyance,” but as the Act goes on to say
“which witness shall upon his oath” prove the execution, the intention, and omission appear palpable. In lieu of the proof by a witness, the persons signing and sealing the memorial, or one of them, can, before the registrar or his deputy, acknowledge the signing and sealing of the memorial, and the execution of the deed or conveyance therein mentioned. Provision is made for proving memorials of deeds, conveyances, and wills made at any place not withiu forty miles of the North Riding similar to that made for the other Ridings. Memorials of wills are to be registered in the same times as they are in Middlesex, and in case of a contest or other inevitable difficulty, a memorial of such contest or difficulty is to be entered within six months or three years, according to the place of the death of the testator being in Great Britain or
elsewhere. In case of any concealment or suppression of any will or devise, no purchaser for valuable consideration is to be defeated or disturbed in his purchase by any title made or devised by such will unless the will be actually registered within three years after the death of the devisor or testatrix (sect. 17). The Act provides for the enrolment of deeds of bargain and sale in the Registry Office, and gives similar effect to the words“ grant, bargain, and sell” in such deeds as is given by the East Riding Act, and it further provides for the enrolment at full length of any deed, writing, will, or conveyance upon proof of its due execution before the registrar or his deputy, or before a judge at Westminster, or a Chancery commissioner, where the execution did not take place within forty miles of the office. Such enrolment is to be in lieu of the registration of a memorial and office copies of the document enrolled are made evidence in all courts of record.
None of the Acts extend to any copyhold estates or to any leases at a rack rent, or to any lease not exceeding twenty-one years, where the actual possession and occupation goeth along with the lease.
had before, ard therefore that a first legal mortgagee who, without notio, of a second duly registered mortgage, had advanced a further sum to the mortgagor upon the same lands was entitled to priority orer the second mortgagee. It does not, however, from the report of the case, appear whether such further sum was secured by any writing or not, but if it were secured by writing as it probably was, the decision would seem to have been overruled by that in the subsequent case of Moore v. Culverhouse, by which a second duly registered mortgage was declared to have priority over a prior unregistered further charge giren to the first mort gagee, but of which the second mortgagee had no notice. In the case of Ex parte Langston (17 Ves. 227) Lord Eldon decided that where the first charge was created by a mere deposit of deeds, a further advance would also be secured even if no charge were given in writing, provided that positive evidence were furpislied that the further advance was made upon the security of the deposited deeds ; and in a subsequent case (Ex parte Hooper, re Hewitt (1 Mer. 7) where the first charge was created by a legal mortgage, he expressed his dissatisfaction with the principle upon which he had acted in the previous case, and considered that it should not be further enlarged, and decided that as the legal estate had been assigned by way of mortgage, the mortgagee was not entitled to say that he held the conveyance as a deposit, and that a subsequent advance upon a parol engagement that the amount should be tacked to the original mortgage debt created nothing more than a debt by simple contract. A purchaser or mortgagee obtaining the legal estate with notice of a prior registered equitable charge, or a prior unregistered conveyance or mortgage, will be postponed in equity to the owner of the other charge, conveyance, or niortgage (Rolland v. Hart L. Rep. 6 Ch. Ap. 678), but not so at law (Doe d. Robinson v. Allsop, 5 B. & A. 142). As registration is not notice, a duly registered document will have priority over one previously but improperly registered. The memorial may be lithographed (Reg. v. Registrar of Middlesex, 7 Q. B. 156). A memorial of impediment to registering a will must be registered within the time limited by the Acts. In Chadwick v. Turner (L. Rep. 1 Ch. Ap. 310), no memorial of impediment to registering a will was registered, but the will was found previously to the mortgage by the heir-at-law to the plaintiff, of the property which was situate in the East Riding of Yorkshire and equitable only, the mortgage was registered, and the will was also subsequently registered, the court decided that the plaintiff had obtained a proper charge and that there was no sufficient notice of the will to the heir-at-law, and, consequently, not to the plaintiff, and Lord Justice Turner added that he was by no means satisfied that notice to the heir would bind the plaintiff
. The memorial of a deed poll which requires execution by and was actually executed by a grantee must be attested by one of the witnesses to the execution of the deed by a grantor : (Reg. v. Registrar of Middlescu, 28 L. J. N. S., 77, Q. B.)
(To be continued.)
MARRIED WOMEN—THEIR GENERAL ENGAGEMENTS
AND SEPARATE ESTATE. In a short note we recently drew attention to the very interesting decision of the Privy Council in the case of The Chartered Bank of Australia v. Lemprière (29 L. T. Rep. N. S. 186), with reference to the powers and liabilities of a married woman with respect to her separate estate. The growing disposition of the courts and of the Legislature to make a married woman, as far as she can be made consistently with the principles which have hitherto guided the courts of equity, capable of contracting and making her separate estate liable, adds importance to the general question, and we propose, therefore, to look at the course which has been followed in the decisions which have culminated in the case of the Australian Bank v. Lemprèire.
We have examined all the authorities with some care, and it will be seen we think that in this branch of law there is less incon. sistency in the decisions than usually prevails. In Gratley v. Noble, (3 Madd.), the elementary question was argued whether a feme covert's separate estate can be made to answer for “general demands ” upon her. The argument in support of the affirmative was this: It is admitted that she may dispose of her separate property by a specific charge on her separate estate; such estate, therefore, is liable to her debts. Norton v. Turville (2 P. Wms. 144) was cited to establish this. There a feme covert having a separate estate gave a bond, and it was held to be a charge on her separate estate though the separate estate had not been specifically charged. Grigby v. Cox (2 Ves. Sen. 517), Allen v. Papworth (1 Ves. Sen. 163), Hulme v. Tennant (1 Bro. C. C. 20), Sockett v; Wray (4 Bro. C. C. 485), Heatley v. Thomas (15 Ves. 596), and Bulpin v. Clarke (17 Ves. 365), were also cited as fully establish. ing the proposition that a feme covert with a separate estate contracting a debt, her separate property is liable, though she has not specifically charged such property with payment of the debt. Then Stamford v. Marshali is quoted as an older case (2 Atk. 69) decided on the broad ground of the liability of separate property to the general engagements of a feme covert, the only exception being where an annuity is granted out of the separate estate of a feme covert, and the annuity is set aside for a defect in the
MIDDLESEX AND YORKSHIRE REGISTRIES Equitable charges and assignments and agreements to charge Tequire registration in the same manner as legal charges, and so do memoranda of deposits of deeds : (Moore v. Culverhouse, 29 L. J. Rep. N. S. 419, Ch.; Neve v. Pennell, 2 H. & M. 170; Re Wight's Mortgage Trust, L. Rep. 16 Eq. 41.) If, however, the charge be created by a deposit of deeds, without writing of any kind, it would appear that no registration is necessary, there being nothing to register : (Sumpter v. Cooper, 2 B. & Ad. 223; 9 L. J. Rep. 226, K. B.) Registration, however, is not notice, so that a purchaser or mortgagee obtaining the legal estate without notice of a previous
duly registered equitable charge will have priority : (Morecock v Dickens, Amb. 678) and in the old case of Bedford v. Backhouse (2 Eq. Ca. Ab. 615) it was decided that registration gave no greater efficacy to deeds that are registered than they
memorial; the grantee in that case cannot recover out of the having separate property to contract in any way she likes to separate estate of the femo covert the consideration be has paid for the the extent of such separate property, and if in pursuance of such annuity. With the exception of this particular case, it was argued, contract she gives a lien or charge upon the property, which in Gratly v. Noble (sup:) that the general rule is that a feme covert can be enforced without invoking the powers of a court of with a separate estate is considered as a feme sole, and her separate equity, it will be liable. But in respect of her general engageestate is liable to answer such obligations as she would be com. ments, expressly made with a view to charge her sepurate pellable to discharge if she were a feme sole. On the other side it estate, otherwise she cannot be made liable personally, obviously was said that, in Hulme v. Tenant, Lord Thurlow, by saying that not at law, and as appears by decided cases, not in equity. the court will bind a feme covert as to making her separate A few remarks may be necessary to complete the treatment of estate "liable to her own engagements,” meant some contract in this subject, with reference, namely, to the nature of the engagewriting. It was not found necessary in Gratley v. Noble to ments which will bind a married woman's separate estate. There decide the general question.
is one plain principle : If credit be given to a married woman, In Stuart v. Kirkwell (3 Madd. 387) it was decided that a primâ facie the separate estate is liable. And the engagement married woman living apart from her husband, and having a must be something more than a mere contract. Indeed the cirseparate maintenance, renders the same liable by accepting a bill of cums'ances of each particular case must guide the decision. If exchange. The Vice-Chancellor there said, “As incident to the there are facts attending the making of the engagement which power of enjoyment of separate property, she has a power to ap- show that the woman is the person looked to to discharge the point it," and the court would " consider a security executed by her liability contracted, and if she acts in pursuance of her contract as as an appointment, pro tanto, of her separate estate.” The liability a feme sole, and in any way deals with her separate property so as of a married woman's separate estate to debts, and how such to create a charge or lien upon it, that property will be liable. As debts may be contracted, is fully discussed in Vaughan v. Vander- Lord Selborne stated in the Privy Council, the question is one of stegen, (2 Drewry), and there it was said (at p. 182), “ The incon- great difficulty, and in every case which could arise a court would sistency of drawing a distinction between the different engage. probably have to put its construction upon the circumstances. ments of a married woman having a separate estate, with reference The position of married women at present is decidedly anomalous. to the different forms in which they are contracted, together with We have a common law doctrine that they cannot contract; we have the unsatisfactory character of the reasons assigned to justify this modified by equitable doctrines, and these doctrines affect such distinction, has forced itself more and more on the attention separate estate by contracts which at common law she is unable to of successive Judges, and a growing tendency has been mani. execute so as to charge herself personally; and the courts of fested to adopt a more consistent view by holding, first, that to equity have gone the length of saying that if the case ever arose, the same extent to which a married woman is, by courts of it would probably be decided that separate estate might be made equity, constituted a feme sole, with respect to the capacity liable for a common assumpsit. Those engaged in administering of enjoying and the capacity of disposing of property, she and applying the law, therefore, should not too hastily run away ought also to be regarded as & feme sole with respect to with the notion that because a feme covert cannot at law conthe capacity for contracting debts or engagements in the tract to bind herself personally, therefore, a feme covert with nature of debts." Some observations of Lord Cottenham are separate estate stands upon the same footing, and does not affect then quoted, in which he makes no distinction between verbal that estate by her contracts. She may contract, and the court promises or engagements and contracts in writing, when writing will have to say, under all the circumstances, whether the contract is not essential to the validity of the engagement. The judg. binds the separate estate. If the estate is stocks and such like, a ment in Vaughan v. Vanderstegen says, later on (p. 188), “It has suit in equity against the trustees is now necessary in order to not yet indeed been made the subject of positive decision that the reach it; if it is movable property, in such a position as to be principle embraces her verbal engagements or cases of common liable to a lien, it would clearly appear to be affected by the assumpsit.
Considering, however, the decisions I have contract in the hands of the person entitled to the lien.
Joint Stock Company's Handybook. By RICHARD JORDAN. Third
Edition. some others, the Lord Chancellor, delivering judgment, said: “I think, too, that the principle on which all the cases proceed,
Tuis little work is published with a view to supplying practical that a married woman in respect of her separate estate is to be
instructions for the formation and management of Joint Stock considered as a feme sole, is in favour of her liability on her
Companies, and its value is proved by the fact that it has reached
third edition. Mr. Jordan's directions are concise and general engagements; upon the whole, therefore,” said his Lordship, “I have co’ue to the conclusion that not only the bonds,
thoroughly intelligible. We may notice particularly the subject bills, and promissory notes of married women, but also their
memorandum of association,” the essentials of which are so general engagements, may affect their separate estates, except as
fully indicated that it would be difficult to err in framing the the Statute of Frauds may interfere where the separate property
document. “Fully paid-up, or vendors' shares,” and “ share waris real estate.”
rants" receive careful attention, and having looked through the The nature of the general engagements which will bind the
book we may state briefly that it sums up clearly and well the separate estate of the wife is indicated by Ayett v. Ashton (1 My.&
practical effect of the Joint Stock Companies Acts. Cr. 105), where a married woman, with the concurrence and in the presence of her husband, signed an agreement in writing to grant
A Treatise on the Fishery Laws of the United Kingdom. Second à lease. That case turned upon the representations as to the Edition. By JAMES PATERSON, Esq., of the Middle Temple, amount of the wife's separate estate at the time of the execution of Barrister-at-Law, late Chairman of the Special Commissioners. the agreement, and only a personal decree was sought against the
for English Fisheries. London: Shaw and Sons, Fetter-lane. wife for specific performance. The court would not recognise the MR. Paterson has divided his work into three parts, dealing personal liability of the wife on the contract, it did recognise respectively with England, Scotland, and Ireland, whilst the her power to pledge and make answerable her separate estate residue is devoted to the statutes, which are given in extenso, for her engagements--adopting the doctrine laid down by Sir with notes to the sections. The fishery laws certainly give us Thomas Plumer in Francis v. Wigzell (1 Madd. 258).
some curious illustrations of our mode of passing enactments. Then, as to the process for enforcing claims upon the separate Our author tells us that the Salmon Fishery Act of 1861, which property. If a feme covert makes a general engagement, and in was very wide in its scope, and repealed all the former Acts, was pursuance of such engagement puts her personal estate within the soon found to be very imperfect. The Act of 1865 was then control of the person with whom she contracts, can it not be made passed, and that Act, in its turn, was found defective,” and the available? In Francis v. Wigzell the observations of Lord Act of 1873 was passed, the main object of which was to confer on Thurlow in Hulme v. Tennant were quoted with approval, and that Boards of Conservators the power to make byelaws so as to vary learned Judge said that the general engagements of the wife shall the close season which the Act of 1861 had made uniform. operate upon her personal property. If that property is in the control of trustees, and can only be got at by a suit in equity, the Bund, and objected to his method of interpolating sections of Acts trustees will be decreed to apply the property in satisfaction of the and lengthy extracts from judgments in the body of the work! liability contracted by the cestui que use. In Nantes v. Carrock (9 Mr. Paterson, we are glad to observe, avoids this. His narrative Ves. 189), Lord Eldon said : "One of the greatest difficulties of the law is straightforward, and if he makes use of judicial dicta that has occurred in this court, is how to give any execution and decision, he does not do so slavishly, but applies them as one against the property of a married woman. In this case the pro- having a thorough knowledge of his subject. That he has such perty is only stock, and there is no instance of this court giving knowledge the work clearly proves ; and we would refer more par. execution against stock eo nomine, upon which there is no lien. ticularly to his treatment of the question, What is a several fishery? And in Jones v. Harris (9 Ves. 497), the same Judge was of and also the nature of right of fishery. The book is one in which opinion that upon a mere contract of a man with a married the majority of our readers will probably take little interest, and woman, “the court will not consider him, in all events, as con- we shall not quote Mr. Paterson to show that our commendation tracting with her as a married woman merely, but as a married is deserved. His work is certainly one of the clearest and most woman having separate estate.” Upon this doctrine, therefore, scientific publications on a special subject which we have met there would appear to be a right ou the part of a married woman with.