« EelmineJätka »
quoted in support of the Treasury, the solicitor who was made liable had taken an active part in the proceedings, and in the present case the court of first instance attempted to extend the rule to where a solicitor bas condoned merely an irregular act on the part of another solicitor, and so to compel the former to inquire fully into the circumstances of that irregular act, and if he does not do so, and loss arises from that proceeding, he would have to make it good, on the ground that he becomes solicitor in the matter. As the Court of Appeal says, “ To make him liable could only be right upon the assumption that he knew, or ought to have suspected, that a dishonest use had been made of his name. To do so would be to put on solicitors the duty of suspicion that an act was fraudulent when any mere irregularity was committed.
REGISTRATION OF TITLE TO LAND. QUESTIONS as to the feasibility of the registration of title to land have recently come under discussion, and the most serious facts for its opponents are put forward in the report just issued by Mr. Fortescue-Brickdale, of the Land Registry, concerning the registration of title both in Germany and Austria-Hungary. In those countries not only is the title put on the register, and any transactions which are carried through concerning the land, but the actual transfer is carried out by mere registration. According to that report, “ notwithstanding the liability to become complicated, the continental registers appeared, according to every test by which their practical efficiency could be tried, to be giving complete satisfaction, and to enable landowners, large and small, habitually to transact sales and mortgages with an ease, rapidity, cheapness, and security which, to persons accustomed only to the conditions of land transactions in this country, will appear almost incredible.” Thus the four points in favour of such a system are simplicity, rapidity, cheapness, and security. In the countries that the report deals with, transactions are carried through in a maximum time of ten to fifteen days, by mere entry in a register, and at a cost of about one-third to one-eighth of what it would amount to in England. With regard to the question of security, immediately on registration the bona fide purchaser's title becomes absolutely secure from adverse claims, while as to the possibility of a forged transfer, Mr. Brickdale was assured, in answer to frequent inquiries, that no such case had ever occurred in practice. The simplicity of the system can be judged from the fact that in the towns people commonly search the register themselves, and often draw up their own deeds.
These are very strong facts indeed, and the other objections which have been put forward seem completely answered. Thus it has been shown that the scheme applies well to tenures which are quite as complex as those in England, and to all kinds and sizes of estates.
The strong point against the introduction of such a system seems to lie in the enormous additional expense to the country, while the only class which would be benefited by it would be one-the landowner. True, in Germany and Austria-Hungary, the report tells us the schemes are carried through without much extra expenditure, but there all the work is done by the Richter, a numerous body, who do all the judicial and quasijudicial work of the country. In England it would involve the appointment of numerous registrars and their staffs throughout the country, and the allotting of offices for the purpose.
We have no one in this country corresponding to the Richter, though bold persons might suggest the County Court Judges; but to every person who seriously considers the question, any scheme which proposed the utilisation of their services would be ridiculous. This seems to be the strong point against the introduction of the system into this country. Should the whole community be taxed, which undoubtedly they would have to be, to benefit one class alone? We answer emphatically no.
the testator have not expressly declared trusts of the property thus given, it follows as a legal proposition that A., taking as an executor, holds the real estate comprised in the gift as a trustee for the heir-at-law, and the personal property comprised therein for the next of kin.
The question thus stated was carefully considered and discussed by all the courts, in the well-known case of Williams v. Arkle (in dom. proc. 33 L. T. Rep. 187; 7 H. of L. 606). In the House of Lords it was laid down that the question whether a person is to take a devise or bequest in a will as an executor or trustee only, or is to have the beneficial interest, is a question of intention; and that such intention is to be collected from the whole of the will. And that most eminent judge Lord Cairns took the occasion to state that it is an undoubted principle of construction that, where property is given to one individual or more, and a trust is declared of a part. or a trust is declared which does not exhaust the whole of the property. there the creation of the trust is considered to be the sole object of the gift, and that which is unconsumed by the trust results to the representatives of the donor.
It may be anticipated that some reference should be made to those cases in which an executor claimed undisposed-of personal property virtuti officii. It will be remembered that, before the statute 11 Geo. 4 & 1 Will. 4, c. 40 was passed, an executor was entitled, by a presumption and rule of law, to all the personal property which was not actually given to anyone else. The Courts of Equity held this rule to be countervailed by various circumstances which it is now unnecessary particularly to specify. The statute mentioned enacted that, where a person shall die, having by will appointed any person or persons to be his executor or executors, such executor or executors shall be deemed a trustee or trustees for the next of kin, unless it shall appear by the will that the person or persons so appointed executor or executors was or were intended to take the residue beneficially. It is worthy of observation upon this statute that it seems to be the better opinion that it did not introduce any new rule for the construction of wills. It merely says that an executor shall no longer take the residue by implication of law, and it is only intended to apply in those cases where the rule or presumption of law could be held to operate. Therefore, where there is an express devise of the residuary personal property to the executor, the meaning of that residuary bequest. must be ascertained not by any artificial or Parliamentary rule, but by the ordinary rules of construction : (Williams v. Arkle, ubi sup.).
There is another case which may with advantage be briefly stated. A clergyman by his will gave several legacies of considerable amount to his
hildren, to be paid out of his real and personal estate, and £10 to each of his executors in case they acted as such ; and then, after bequeathing various specific bequests, he devised and bequeathed all the rest, residue, and remainder of his real and personal estate not thereby otherwise disposed of to S. F. and A. O., and he appointed S. F. and A. O. executors of his will. By a codicil the testator devised to his executors a particular house not before mentioned in trust for sale, the proceeds to be divided among his children. The residue was found to amount to some £800. On behalf of the testator's children it was contended that the executors took this residue as trustees, and that there was a resulting trust of it in favour of the children. But the Vice-Chancellor Kindersley held that the facts of the executors having equal legacies given to them, and taking the residue in joint tenancy, though sufficient to have prevented them from taking the residuary personal estate beneficially by virtue of their office, were insufficient to prevent the operation of the clear gift to them as individuals ; and his Honour therefore decided that S. F. and A. 0. took the residue beneficially : (Re Renshaw, 34 L. J. 98, Ch.). This decision seems to evince the wish of the judges in the present day to take no technical grounds, and to uphold the operation of a gift to an executor, plainly so expressed in the absence of any contrary intention or evidence.
In seven cases out of ten testators appoint as executors persons on whom they wish and intend to confer benefits by the will. Hence the subject under consideration is of no mean importance. It remains to. consider what is the practical reflection to be made-the homely lesson to be learned ? In the first place, to put carefully at the back of the mind, ready for instant use, the question upon which our observations have been made. It will not then be unfortunately forgotten when a will is being prepared, or one requires to be construed and explained. Besides that, the question suggests one more instance of the great care requisite when examining a probate, because the whole scope of a will is that which best explains its meaning. An abstract of a single devise or bequest or other part of a will should not, in fact, be too hastily or readily accepted as conclusive, however conclusive it may appear standing alone and by itself. Far above and beyond all, the question proves how essential it is for a draftsman to express a testator's meaning with the utmost precision. Brevity is fashionable, but undue brevity may bring ambiguity, and ambiguities may land a family in more or less acrimonious litigation.
TESTAMENTARY GIFTS TO EXECUTORS. Those conversant with the law affecting the poor know full well that depositor, not under sixteen years of age, in that admirable institution the Post Office Savings Bank may nominate any person to whom any sum, not exceeding £100, payable to such depositor at his death, shall be paid at his death. A Mrs. Read recently showed, we imagine quite unintentionally, how such a nomination may raise legal difficulty, if it do not indeed cause litigation. This lady, being a depositor, took advantage of this useful provision, nominating in 1895, in the prescribed form, a Mr. Henry Read. But previously, in 1891, she had appointed this gentleman one of the executors of her will. On the question whether Mr. Read was entitled under this nomination for his own benefit being raised before Mr. Justice Stirling, his Lordship came to the conclusion on the facts and evidence, that Mrs. Read's intention in executing the nomination was to transfer the moneys standing at her death to her credit at the bank to Mr. Read as executor; and accordingly he made a declaration that Mr. Read beld such moneys upon the trusts of Mrs. Read's will : (Re Read ; Turner v. Read, 75 L. T. Rep. 295).
This decision of one of the most able of our judges is not only interesting to a poor man's lawyer. It will also serve to call to the mind of any lawyer whose clients consist of aristocratic or opulent persons a question that is likely to be overlooked, or not sufficiently weighed. That question is of paramount importance, and may be put thus : Are words in a testamentary document, which standing alone would be sufficient and apt to give to A., who is also appointed executor of the will, real or personal estate beneficially controlled or explained by other provisions in the document, so that A. does not take beneficially, but as an executor or trustee ? And if the answer to this question be in the affirmative, and if
APPEALS FROM COUNTY COURTS UNDER STATUTES GIVING THEM A SPECIAL JURISDICTION.
By G. PITT-LEWIS, Q.C. The County Court practitioner -especially if he is a country one is not unfrequently called upon to consider both whether any appeal at all lies from the decision of a County Court judge, under a statute giving him special jurisdiction, and also what, if such appeal lies, is the proper mode of procedure. Both these are questions which appear, at first sight, to present erable difficulties. The ingenuity of the
of the Court of Appeal has, however, now discovered-or perhaps we rather should say has cut a way through-the jungle of legislation in the midst of which these subjects have been obscured.
The question whether there is any appeal at all requires, of course, always to be the first decided. Many statutes, which were passed prior to the County Court Act 1888, conferred a special jurisdiction upon the County Court, with a provision that the decision of such court should, in the cases which the statute comprised, be “ final,” or that such an appeal should only be allowed upon certain securities for costs being given. On the other hand, sect. 120 of the County Courts Act 1888 directs that an appeal shall be allowed wherever a party to “any action or matter sball be dissatisfied with the determination or direction of the judge in point of law or equity, or upon the admission or rejection of any evidence.” This section of the County Courts Act 1888 impliedly repeals so much of any previous Act as is inconsistent with it. Inasmuch, therefore, as it expressly gives an appeal on every question of law, or as to the admissibility of any evidence, so much of any previous enactment as is inconsistent with this must be taken to be impliedly repealed. Every such earlier enactment, however, remains in full force as regards appeals on questions of fact. The short result therefore is, that by virtue of sect. 120 of the County Courts Act 1888, an appeal always lies upon a question of law, or as to the admission or rejection of evidence, notwithstanding any provisions apparently to the contrary which may be contained in any Act of earlier date than 1888. But, as to questions of fact, the provisions of every Act passed previously to the County Courts Act 1888 still remain in full force, and a dissatisfied party can only appeal under the circumstances prescribed by the earlier statute.
The decision of the Court of Appeal, in the case of The Neptune Steam Navigation Company v. Sclater; The Delano, in Nov. 1894 (reported 71 L. T. Rep. 544 ; also reported (1895) P. 40), will be found to be an authority for the law as just stated, and the propositions above set out were there, in substance, enunciated and explained in the judgment of the Master of the Rolls (Lord Esher) in that case, to which Lord Justices Lopes and Rigby each gave a somewhat reluctant assent. The former learned Lord Justice, however, expressly admitted that “the conclusion at which the Master of the Rolls has arrived is a very salutary one.” At the same time, it is not always very easy to determine whether a question is one of law, as distinguished from one of mere fact. Experience alone can enable a practitioner to accurately make the distinction. In cases of “mixed law and fact," indeed, it is sometimes exceedingly difficult to say precisely how far the question is one of law, and how far one of mere fact. Some general remarks on this subject will be found in Taylor on Evidence, sect. 26 (9th edit., pp. 28-9). That learned writer commences jauntily with the remark that to distinguish questions of law from questions of fact "is in ordinary cases no very difficult task.” As soon, however, as he has written a few lines on the subject our author apparently changed his opinion. For, after making a few very general remarks on the subject, and apparently discovering that it is impossible to extract any very satisfactory general principle from such decisions, he remarks (9th edit., p. 29, note 2): "See, on this difficult subject, 12 Law Mag. 53-74; 1 St. Ev. 512-526," and finds himself in his text compelled to go on and “ how far this subject is governed by actual decisions, which have taken place on it, and as to whether the questions arising in particular cases are to be regarded as matters of law and of fact.” Some twenty pages of his work are then occupied by an elaborate and detailed enumeration of such cases, extending from paragraph 28 to paragraph 46 (9th edit., pp 29-49). Neither in Taylor on Evidence, nor in the authorities cited by him (which by the way ought to be cited as Law Mag. vol. 1, No. 12, being Law Mag. for Aug. 1834 at p. 53 ; and Starkie on Evidence, 4th edit., 1853, p. 764, et seq.) is there to be found any entirely satisfactory test for determining the true rule upon the subject. Perhaps the matter is most neatly put in Starkie on Evidence, p. 765, where it is laid down that “with respect to every essential allegation ” (i.e. every allegation which it is, in point of law, essential for the plaintiff or prosecutor, or for the defendant, as the case may be, to prove in support of his case) "the jury must find the facts, but it is always for the court to decide whether those facts, when proved, support the allegations in point of law.” The same idea is expressed in the article in the Law Magazine, above referred to, in the following words : “ The principle upon which in most cases the distinction between the different provinces of judge and jury is founded, and that upon which it in all cases ought to be founded, is the existence of a rule of draw; and, if such a rule exists, the judge ought to lay it down, to be applied by the jury; but, in every other case, the decision ought to be left entirely to their discretion.” Of course, where a jndge is sitting without a jary he must, as it were, direct himself as to the law, and then perform the separate mental process of determining what the facts (as apart from the law) of the case before him are. A good example of the distinction between questions of law and fact would be this : Suppose a question arose whether the water at a certain spot (say the water off
the Steepholmes in the Bristol Channel) was or was not for the purposes of Admiralty jurisdiction. It would then be a question of fact how far the spot is distant from the coast, and how it is affected by the tides and so on; but, when the facts were ascertained, it would be a question of law for the court to determine whether, assuming these facts, it is or is not "sea for the purposes of Admiralty jurisdiction.
The practitioner having satisfied himself that the point upon which he wishes to appeal is one “ as to the determination or discretion of the judge in point of law or equity, or opon the admission and rejection of any evidence,” has next to consider the procedure which he must adopt, in order to successfully get his appeal before the court on its merits. Here he will not improbably find himself confronted with the difficulty that the statute under which his client's right of appeal arises directs that such appeal shall be brought by way of a special case being stated by the County Court judge; whereas the rules of the Supreme Court, by which appeals from County Courts are now regulated, contain no provisions under which a special case can be stated. Here, however, the procedure to be followed has been clearly laid down by him by the Court of Appeal, in the case of Kirkheaton District Local Board v. Ainley, decided by it in June 1892, and reported 66 L. T. Rep. 340; also reported (1892) 2 Q. B. 274. In the case just referred to, Lord Justice Bowen explained the point with the lucidity and clearness which was characteristic of that great judge. Said he: “ Assuming that this is an appeal on the merits, I think that the appeal is rightly brought by way of motion, and not by way of special case. The matter stands thus: It is provided by sect. 124 of the County Courts Act 1888 that .no judgment or order of any judge, nor any action or matter brought before him, or pending in his court, shall be moved by appeal, motion, certiorari, or otherwise, into any other court whatever, save and except in the manner and according to the provisions in this Act mentioned.' An appeal from the County Court on questions of law is provided for by sect. 120 of the Act, but that section does not say anything as to the special kind of appeal where a statute, as in the present case, gives an appeal on the merits. Nevertheless, I think that sect. 124 draws within the provisions of sect. 120 special appeals like this, though they are not within the terms of that section.” This view was adopted by Lord Justice Smith, who said, “I agree that the appeal was rightly brought by way of motion, and with the reason of Lord Justice Bowen thereon.” Lord Esher, M.R., had previously given a judgment allowing the appeal, in which, however, he had not discussed the question of procedure, but had left it to be dealt with by his colleagues.
CIVIL JUDICIAL STATISTICS, 1894.
(Continued from page 129.) There are no complete returns of the trades or professions of the persons who become bankrupt. Mr. Seyd has compiled such returns as to the failures in the wholesale and retail trades of the United Kingdom ; and attached to the recent annual reports of the Inspector-General is information as to the failures in certain trades. Unfortunately, the classifications do not always exactly agree with the classifications of occupations in the census. Of the classes of persons coming under the operation of the Bankruptcy Act the Inspector-General (Report for 1890, p. 5) observes: “It may be stated broadly that the insolvency of the trades which are based on commercial credit is diminishing, while that of the non-trading classes, and of such occupations as do not necessarily depend on credit is, as a rule, stationary or increasing." The failures among farmers are not so numerous as might be expected in view of the many years of agricultural depression. During the past decade 1886 was the year in which there was the largest number of failures (332) among this class. In 1891 the total number of farmers who failed was one in 1193. Writing in 1891, the Inspector-General in Bankruptcy states : “ The number of failures
under this head (farmers) has been been steadily diminishing since 1886, when it stood at 332, as against 172 during the past year; and this experience is corroborated by the statistics relating to deeds of arrangement, which show that the number of farmers' failures in 1888 (the first year for which statistics are available) was 179, whereas during 1890 it had fallen to 117.” (Report of InspectorGeneral for 1890, p. 5). Since these remarks were written the failures of farmers have tended to increase, the number under the Bankruptcy Acts in 1894 having being 313. In the same year the number of builders who failed was 1 in 194, while the proportion among solicitors was 1 in 540.
In the report of the Inspector-General for 1895 (p. 67) is given the following statement as to total failures under bankruptcy and deeds of arrangement in certain trades :
14 18 175 594
15 304 50 65 32
£ 34,966 39,923 70,374 522,934
18 26 209 638
18 383 50 49 18 52
£ 14,004 45,804 97,413 626,794
53,305 461,792 139,670 126,251
31 26 222 713
£ 83,637 53,563 94,640 734,726
24 23 223 774
£ 35,697 33,610 95,745 659,465
17 15 169 595
24 564 55 55 30 47
23,230 10,449 71,264 531,840
47,866 736,030 183,099 54,048
19 523 42 40 33 53
55,429 678,294 95,292 96,844 17,018 377,221
27 518 36 53 43 39
843,266 2,030,525 5,645,469
£ 3,937,378 22,188,162 12,567,180 6,804,742
2,229,627 15,622,629 5,907,173 5,303,657
On this table it is observed (p. 4): “ The most conspicuous increase is in the case of solicitors, whose liabilities have risen from £383,936 in 1894 to £673,322 in 1895.
of the grounds of bankruptcy, the largest are debtors' petitions. Bankruptcy notices under sect. 4 (g) of the Act of 1883 come next, and are increasing. In 1884-88 they were 12:38 per cent. of the whole; in 1894 they were 16:47. Next in point of importance
acts or conduct on the part of the debtor falling within sect. 4 (d)-departing from the debtor's dwelling-house with a view to defeat his creditors. Fraudulent preferences, which figure largely in text-books and reports, have always been an insignificant fraction, perhaps owing to the difficulty of obtaining proof of such preference ; in the former period they were 0:05, and in the latter 0:06 per cent. of the whole.
How bankruptcy basiness is distributed between the High Court and County Courts appears from the table, which shows an increasing proportion of cases begun in the latter. In 1870-74 they were 80-86, and in 1894 they were 60:40 per cent. of the whole ; but in the latter year more than 80 per cent. of the High Court cases consisted of deeds of arrangement registered under the Act of 1887.
XIV.--COMPANIES WINDING-UP. There are three modes of winding-up companies : (a) voluntary liquidation ; (b) liquidation under the supervision of the court; (c) compulsory liquidation by order of the court. The returns from 1862 to 1890 relate only to the two last classes. The Companies (Winding-ap) Act 1890 does not affect the voluntary liquidations, except that sect. 15 requires the liquidator of companies, the liquidation of which is not completed within a year, to send in a statement of receipts and payments. Unfortunately the returns as to the last two classes are not uniform. The returns of the chief clerks in the Chancery Division stated the amount of debts proved and the number of orders brought into chambers, but they did not give the same information as that contained in the Inspector-General's reports, from which the following figures are taken :
Petitions for Winding-up presented.
According to the estimates of the liquidators, the figures for the last two years were very different.
It was pointed out in the Inspector-General's Report for 1894 (p. 5) that, while the number of liquidations showed a decrease in that year of 4.22 per cent., there had been a corresponding increase in the number of non-liquidating, but abortive, companies, and that, judged by the experience of the past two years, only one-third of the companies registered become permanent. It will be noted that the voluntary liquidations are more than 80 per cent. of the whole.
There has been little difference since 1873-77 in the number of orders for compulsory winding-up. The annual averages were :1893-94
127 | 1873.77 1888-92 106 1868-72
76 1883-87 143 | 1863-67
66 1878-82 134 | 1858-62
12 Like the estimates of liabilities and assets in bankrupties, those of companies wound-up are trustworthy. In the first place they are the estimates of directors and officers of the companies, prone to over-rate the former and under-rate the latter (see reports of Inspector-General in Companies Liquidation 1891, p, 5, and 1892, p. 5). For example, the losses to creditors and contributories in companies ordered to be wound-up compulsorily in 1894 were put in the statements of affairs at £4,497,009; by the liquidators they were estimated at £6,306,455 (see report for 1891, p. 60). On the other hand, a large part of the loss consists of mere paper loss; many of the shares which appear as part of the loss to contributories were issued as fully paid up. In the second place, the figures do not include the liabilities of companies liquidated voluntarily.
The following were the estimated liabilities and assets of the companies ordered to be wound-up compulsorily since 1891 :-
Annual Average 2,865,798:5 3,161,574:25 12,122,135.5 18,149,508:25
Considerable use has been made of the powers of examining directors, officers, &c., under sect. 8 of the Companies (Winding Up) Act 1890. Notwithstanding the decision that an order for examination under this section cannot be made except on a report of an official liquidator alleging fraud, the cases have increased.
XV.-RECEIPTS AND EXPENDITURE. Returns are published annually of all receipts and expenditure of the Supreme Court; and at page 211 is a statement of the receipts and ex. penditure of the County Courts for 1894. No similar statement is annually published for most of the other inferior courts.
The returns for the Supreme Court in the table begin with the year 1884, the returns for earlier years having been prepared according to a different system.
Since 1884 there was a decrease of 7.9 per cent. in the receipts. The nominal amount of dividends on cancelled stock, and the judicature stamp fees, which are the chief source of income, were both less remunerative than in 1884.
The expenditure since 1884 diminished about 7.4 per cent., the chief reductions being in the salaries and pensions of officers. The total deficit in 1894 was about £148,000.
On the other hand the Bankruptcy Court appears to show, with the exception of one year between 1884 and 1894, an excess of receipts over expenditure varying from £2000 to £31,000.
RETURNS FOR THE YEAR 1894. No inference can safely be drawn from any comparison between the returns for two years. Consequently reference is seldom made in the following observations to differences between the returns for 1894 and those for 1893. Unless the contrary is stated, the comparison is between the returns for 1894 and the annual average for 1890-94.
1.-TOTAL PROCEEDINGS BEGUN, 1894. There was a slight increase (about 6 per cent.) in the total proceedings begun in 1894.
appellants they were unsuccessful. From another new table showing the duration of proceedings in appeals, it appears that the interval between the date of the last order appealed from and final adjudication was, in the great majority of cases, from six months to two years. This interval, of course, depended to some degree on the action of the parties. The interval between the presentation of the appeal and the final adjudication varied from three months to one year.
The proportion of appeals to the House of Lords from courts in England and Wales to the total number of appeals to the Court of Appeal was 1 in 16, the proportion for 1890-94 being the same.
IV.-COURT OF APPEAL. In the Court of Appeal there was a decrease in the following matters :Appeals from final judgments set down
5.5 per cent.
3.8 Motions for new trial set down
35:4 The proportion of appeals to proceedings begun in the High Court was 1 in 149, as against 1 in 142 in 1890-94.
V.-CHANCERY DIVISION. In the Chancery Division the number of writs (including 113 in the Liverpool and Manchester District Registries, 3215), and other originating proceedings was slightly greater than in 1890-94. The number of petitions continued to decline. In the number of actions set down there was an increase of 1.4 per cent., and in actions heard of 6.2 per cent. In summonses at chambers, orders made, number and amount of receivers' and other accounts passed, and costs allowed, there was a decrease.
The following were the witness actions tried in the year ending. Dec. 1894. By Mr. Justice Chitty
COURTS OF FIRST INSTANCE. High Court of Justice:-
on Crown Side Revenue Cause and Matters
Total, Q. B. Div.
miralty Division :
Total, Probate, &c., Dir.
Total, High Court of Justice Petitions in Lunacy Lancaster Chancery Court Durham Chancery Court... County Courts Stannaries Court Mayor's Court, London Borough Courts of Record and
other Inferior Courts Ecclesiastical Courts...
IMPROVEMENTS in the system of sanitation employed in a house are improvements of a permanent nature likely to benefit remaindermen as much as tenants for life. Questions frequently arise as to the incidence of an expense incurred by trustees in executing works ordered by notice from local authorities--is it to be borne by the corpus or the income ? In Re Lever ; Cordwell v. Lever (noted ante, p. 109), Mr. Justice Stirling had to determine a point of this character, and he did so at the expense of the corpus. In Tucker's Settled Estates (72 L. T. Rep. 619) a tenant for life was unsuccessful in an attempt to saddle the corpus with the costs of some drainage works; but that case is scarcely applicable, for it turned more upon the question of the power of recouping a tenant for life for expenses already incurred some considerable time before the application was made. Lord Justice Lopes, while stating the difficulty of framing any rule, indicates a general principle---that improvements are things to be deducted from capital, while things which are usually done by an occupier should come out of income. Sanitary improvements are, in spite of the capricious demands of local authorities, of a permanent nature and benefit all parties interested.
II.-JUDICIAL COMMITTEE OF THE Privy COUNCIL. In the Judicial Committee of the Privy Council, there was an increase in appeals entered of 13-5 per cent. and of 11'1 per cent. in appeals heard. The affirmations were 56:6 per cent., as against 61.8 per cent. in 189094. For the first time in the returns for 1894, information is given as to the courts from which appeals to the Judicial Committee were brought. The large percentage from New South Wales, more than 28 per cent. of the entire number (39) of appeals from colonial and consular courts will be noted. Of the Indian appeals (45) more than 60 per cent. were from Bengal.
III.-HOUSE OF LORDS. In the House of Lords 58 petitions were presented, as against an annual average of 61 in 1890-94. Sixteen were disposed of before hearing at bar; of those finally adjudicated upon 48 in all-28, or 58 per cent., were affirmed. As usual, the proportion of Irish appeals for disposal was very small; only 2, as against 60 English and 24 Scotch appeals. Of the latter 11 were from interlocutors of the First Division of the Court of Sessions, and 7 from interlocutors of the Second Division. No judgment was delivered in any Irish appeal. Among the new tables is one relating to petitions to sue or defend in formâ pauperis. Only 5 were presented ; and in all the causes disposed of in 1894 in which there were pauper
MR. JUSTICE Williams has expressed disapprobation of the practice of joining a claim for misfeasance in relation to an issuing of shares of a company with a claim for a declaration that persons are liable as contributories. The proper course is for a liquidator to make up a list of contributories and have a question of liability settled by an application to remove a name from the list. In Re E. J. Wragg Limited (noted ante, p. 108) a company had been formed, and a large sum of the consideration money allocated as representing the value of coaches and horses. The summons, which drew from Mr. Justice Williams the above expressions, was taken out with a view to recover from the vendors the sum over and above the true value of these items as damages for misfeasance, and as a second string, to ask for a declaration that the vendors, quâ contributories, were liable to make up the amount as unpaid on their shares. Both points failed. Mr. Justice Williams stated that, though it is sometimes convenient for a liquidator, when seeking a decision as to the status of a class of contributories, to take out a summons for the purpose, it is not the ordinary practice, and it is wrong to claim an order for payment of the amount of the liability.
ATTEMPTS to induce the courts to permit the expenditure of funds in the hands of trustees upon trust to invest in land, in the repair of the mansion-house, have been met on many occasions with chilling disfavour. In the case of Re Lord de Tabley; Leighton v. Leighton (noted ante, p. 62) the repairs were not such as those contemplated in the Settled Land Acts, nor was there any evidence of an intention to let, but the attempt was made under the general jurisdiction of the court. Mr. Justice Chitty referred
to the practical difficulty experienced in acceding to such applications in the case of Re de Teissier's Settled Estates (68 L. T. Rep. 275; (1893) 1 Ch. 153). He foresaw that, whenever a dilapidated mansion-house was left by a testator-by no means an infrequent circumstance-the tenant for life would first strive to wriggle bis facts within the terms of the Settled Land Act, and if unsuccessful in that, would appeal to the general jurisdiction of the court. Any indulgence shown would result in a flood of such applications. In Conway v. Fenton (59 L. T. Rep. 928 ; 40 Ch. Div. 512) Mr. Justice Kekewich sanctioned the expenditure of money in repairs to preserve the value of the settled property; but there it will be observed there was a trust for sale, and the sums thus expended were authorised with a view to improving the price to be obtained whenever a sale might be desirable.
The constant attempts of vestries to saddle house owners with the expense attending alterations in the systems of draining have made them very nervous of the large powers reposed in these dictatorial authorities. The Court of Appeal have, however, in the Vestry of St. Martin's, &c., v. Ward (noted ante, p. 60), justified an owner who declined to pay for the expense of making a new drain in connection with a new sewer. The alteration was made under sect. 69 of the Metropolis Management Act 1855, which enables a vestry to discontinue unnecessary drains, and to make and maintain necessary ones, and compels them to provide house owners with a system as efficient as the one cut off. Under sect. 73, if a house is not sufficiently drained, the owner can be compelled to make a proper drain. The vestry sought under the latter section to compel an owner to defray expenses incurred by them under the former. The Court of Appeal quashed such an attempt. It would be an iniquitous burden to cast upon house owners were they to be liable not only to keep their drains in repair, but to alter the system merely because a vestry desires a change in the system of sewerage. A somewhat similar attempt was frustrated by the court in Vestry of Marylebone v. Viret (12 L. T. Rep. 673). There Mr. Justice Byles considered that an owner need not pay the expense of communicating with a particular sewer, but must have connection with some sewer.
A WILL is revoked by the subsequent marriage of the testator, unless made in exercise of a power of appointment, where the testator's estate does not directly benefit if the power is not exercised : (Wills Act 1837, s. 18). An alteration of circumstances does not revoke a will: (sect. 19). “No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same : (sect. 20). It is clear from this that a testator who is dissatisfied with his present will, in order to revoke it must either marry, make what is in effect a new will which expressly or impliedly revokes the former one, or destroy it. The testatrix in Atkinson v. Morris (noted ante, p. 132) tried another way, which to the lay mind might seem sufficient. She ran her pen through her own signature and partly through that of one of the witnesses, and added “Null and void,” with her initials. Though her intention was evidently to revoke the will, she failed to do so, as she had not fulfilled any of the conditions necessary for legal revocation. There was some evidence forthcoming that she had told someone that she had destroyed a duplicate of the will with the intention of revoking the whole will. Now, “ where a will is executed in duplicate, one of which the testator retains, while he deposits the other in the custody of another person, the destruction of the duplicate in the testator's possession revokes the whole" : (Theobald on Wills, 4th edit., 46). In Jones v. Harding (58 L. T. Rep. 60), a solicitor deposed that the testatrix had executed her will in duplicate and had kept one part. Nothing could be found of this part at her death, and the judge, Mr. Justice Butt, in following a decision of Sir J. Hannen, decided that there was a presumption that she had duly revoked it. It may well be questioned whether there should be any such presumption, as nothing could be easier than for a person claiming against the will to destroy it after the testatrix's death, whereas the testatrix could have sent for the duplicate from the solicitors and destroyed them both. The court was invited in Atkinson v. Morris to go further than this, and to admit evidence of declarations by the testatrix as to the destruction of the duplicate. This the Court of Appeal (affirming Mr. Justice Barnes) refused to do. So the will, not having been effectually revoked, was upheld, and the property passed in a manner which the testatrix had not wished.
The Lord Chancellor presided on the 17th inst. at the Hotel Cecil, at the annual dinner of the Honourable Society of Cymmrodorion, the object of which is the encouragement of literature, science, and art as connected with Wales.
Lord Russell of Killowen has presented Captain Dutton, Commander of the Cunard steamer Umbria, with a handsome silver tea service, as a souvenir of his recent voyage across the Atlantic in that vessel.
Lord Justice Lopes and family have left London for Heywood, their residence in Wiltshire.
Lord Justice Kay has recovered from his illness sufficiently to enable him to take walking exercise.
Mr Justice Romer left London for Paris via Folkestone last Wednesday.
Sir Richard Webster, Q.C., M.P., the Attorney-General, has left town for his country house at Cranleigh, near Guildford. He will visit the Isle of Wight early next month in order to address his constituents.
Sir Robert Finlay, Q.C., M.P., the Solicitor-General, is passing the Christmas holidays at his country house, Newton, Nairn, N.B.
Mr. Joseph Walton, Q.C., has consented to preside at the fourth annual dinner of the Legal Musical Society, which will take place at the Freemasons' Tavern on Wednesday, the 6th Jan.
The members of the Northern Circuit will entertain Mr. McConnell, Q.C. at dinner on the 16th Jan., on his appointment as Chairman of the Quarter Sessions for the County of London.
“Sir Henry Hawkins” is the title of the ninth article of a series on Our Judges and Famous Lawyers, now appearing in Lloyd's Weekly Newspaper.
The Bill for the restriction of the immigration of coloured races has been passed by the Sonth Australian Legislative Council.
The United Law Clerks' Society hold their annual general meeting at the Freemasons' Tavern on Monday, Jan. 4. The committee, stewards, auditors, and treasurer will be elected at this meeting.
The Council of Legal Education have arranged with Mr. F. B. Palmer to deliver, during the ensuing Hilary educational term, a course of six lectures on “ Company Law.”
The December adjourned General Sessions of the Peace of the County of London was commenced, at Clerkenwell, last Monday. There are some fifty persons sent for trial, but seven of that number are awaiting sentence from last sessions, so that the business is not of a heavy description.
Mr. Thomas Chapple, who is retiring from the office of Messrs. Riccard and Son, solicitors, Southmolton, has been presented with a handsome silver sugar basin from the principal of the firm, and by the clerks in the office a silver cream ewer. The basin bears an inscription referring to Mr. Chapple's fifty years' faithful service.
The Exchange Telegraph Company says that certain changes will take place among the metropolitan police magistrates early in the new year consequent on the retirement of Mr. Newton, the Marlborough-street magistrate, which is said to be imminent. The changes will be in the nature of transfers from one court to another.
The Standing Orders of Parliament require that bills with which it is proposed to proceed during the forthcoming session must be lodged at the Private Bill Office of the House of Lords, at eight o'clock, on the 17th Dec. The bills deposited this year number 248, showing an increase of fifty on the total number left in 1895. On the 30th Nov., the last date upon which plans may be deposited, documents relating to 293 measures were lodged at the Private Bill Office.
Scene: Mr. Justice Cave's court. Time: the 16th Dec., 2.30 p.m. Witness in the box.-Mr. Justice Cave (to the learned counsel): You're not watching my pen. You're going too fast.--Mr. Rose-Innes : I beg your Lordship's pardon.-Mr. Justice Cave: I always hate a man who doesn't watch my pen.-Mr. Rose-Innes : Your Lordship needn't hate me. -Mr. Justice Cave: When a man goes too fast, I stop taking notes.--Mr. Rose-Innes : Your Lordship is quite right. -[Witness resumes his evidence, which he gives without making any pauses.]-Mr. Justice Cave: Go on, you can't go faster than I can take it down.
A report was presented last week to the Faculty of Advocates, on the question of the creation of Scottish Queen's Counsel. The committee presenting the report stated that they were of opinion that so long as there is, as at present, only one roll for English and Scottish Q.C.'s, the Lord Chancellor must continue to be the person to recommend to Her Majesty all applicants for the dignity ; but they have come to the conclusion that it would, for various reasons, be better if a Scottish roll of Q.C.'s were instituted, the applications for admission to it being laid before Her Majesty by the Secretary for Scotland upon the recommendation of the Lord Justice-General of Scotland, as the holder of the highest judicial office in Scotland. They, accordingly, suggest that Her Majesty should be humbly petitioned, through the Secretary for Scotland, or otherwise, as shall seem fit: (1) To authorise the institution of a Scottish roll of Queen's Counsel similar to the rolls presently kept for England and Ireland; (2) to authorise applications for the dignity of Q.C. to be laid before Her Majesty through the Secretary for Scotland upon the recommendation of the Lord Justice-General for Scotland ; (3) to authorise that letters patent conferring the dignity of Q.C. on members of the Scottish Bar be issued under the Great Seal of Scotland from the office of the Secretary of Scotland ; and (4) to order that gentlemen on the Scottish roll of Q.C.'s should take precedence in relation to Q.C.'s of the English and Irish Bars, according to the date of their respective patents.
VOLUNTARY settlements are void against a trustee in bankruptcy if the settlor becomes bankrupt within two years after the date of the settlement, or if he becomes bankrupt within ten years after that date, unless the parties claiming under it can prove that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in it, and that the settlor's interest passed to the trustee of the settlement on the execution thereof. But what happens if, after all the debts are paid in full, there still remains some of the property comprised in the settlement? If the settlement is wholly put out of the way, it must return to the settlor; if it is void to the extent only necessary for obtaining complete payment to all the creditors, it returns to the settlement trustees. In Re Sims (noted ante, p. 133, and more fully in 41 Sol. J. 113) the settlement property was valued at £16,000, whereas the debts only amonnted to £2000. Mr. Justice Williams held that the surplus, after payment of debts and costs, would revert to the trustees of the settlement, though it was void as against the trustee in bankroptcy.