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The burden of proving that the gift over to all equally in default of appointment is not to take effect, lies on the party asserting it; it is not enough to show that, at the time of the execution of the deed, it was the intention of the donee that the appointee should have no more than the part appointed ” : (Farwell on Powers, 2nd edit., 367). An attempt is sometimes made to unite two funds so that an appointment under one must be taken into consideration in the distribution of the other. Thus, in Re North ; Meates v. Bishop (noted ante, p. 463), certain funds were settled under a marriage settlement upon the usual trusts for the children of the marriage with a hotchpot clause. The wife's mother subsequently bequeathed a part of her personal estate to the trustees of the settlement upon and for the same trusts and purposes as were therein expressed concerning the settled property. It was contended, on behalf of those interested in doing so, that this caused the hotchpot clause to be applicable to the two funds, so that any money appointed under the settlement must be brought into account in distributing the funds passing ander the will. Mr. Justice Stirling disagreed with this contention, as there was nothing in the will to show that the new trust fund was to be an accretion to the old. Of course, if one settlor or testator by the same instrument settles separate funds, he may more readily be supposed to have intended that all the funds are to be subject to one hotchpot clause. In Re Perkins ; Perkins v. Bagot (67 L. T. Rep. 743) there were three funds in different parts of the will given upon the same trusts as the proceeds of real estate, in relation to which there was a provision for hotchpot. Mr. Justice North said: “On the whole, therefore, I think that he has not made three separate settlements of these different funds, but has given the second and third funds to the trustees of the first as an accretion to the fund already held by them, and has declared one trust of the whole. The hotchpot clause, therefore, applies to all three funds.
In the case of Montague v. Montague (15 Beav. 565) there were two different settlements made by distinct instruments. I quite concur in that decision, but that fact distinguishes it from the present case." The learned judge might have added that there were also in Montague v. Montague distinct hotchpot clauses in the two deeds, and each provided that no child should be entitled to any further sum by virtue of these presents without bringing the moneys appointed into hotchpot.
"Hotchpot” is not confined to the accounts of persons entitled under, or in default of, appointment, but applies also when a testator directs that something given before he dies is to be treated as part of the share which he has bequeathed. A case in point is Re Cosier (76 L. T. Rep. 31), where a father who had two children directed in his will that any sum which he had agreed or covenanted to give to any child should be taken in or towards satisfaction of the child's share under the will, and be brought into hotchpot. The father on his son's marriage had agreed to give a sum of money to the trustees of the settlement upon the usual trusts for the husband and wife and their children, and in default of children, for the father himself.
no question that the particnlar direction to which we have referred was applicable, but there was some doubt as to what was the effect of the fathsr's having a contingent reversionary interest in the sum to be brought into hotchpot. The Court of Appeal have decided that the capital was by the testator's direction taken out of his estate, was no longer his, and could only come back to him by gift or purchase from the
As the son died withon issue, the father's estate would have been entitled to the capital settled (subject to the life interest of the son's widow), and, if the court had not decided the other way, it would have been divisible between the son's estate and the other child. This, instead of bringing about equality, wonld have made the other child's share much larger than the son's. The Court, however, held that the ultimate trust in the settlement had ceased to be a trust for the father, and had become by virtue of his will a trust for the son, his executors, administrators, and assigns.
one of intention, to be decided upon the facts of each particular case.
Reg. v. Chorley shows that time is not a necessary element in a question of abandonment as it is in the case of the acquisition of a right.”
Another question which has come before the courts for decision is, whether the destruction or alteration of the dominant tenement involves an abandonment of the easement, or whether, in the case of destruction, the easement attaches to a building erected in the place of the one destroyed. This is the well-known case of Scott v. Pape (53 L. T. Rep. 598 ; 54 L. T. Rep. 399; 31 Ch. Div. 554), in 1886, in which Mr. Jastice North was affirmed by the Court of Appeal. The plaintiff had acquired a right to light in respect of a certain building. He pulled it down, and erected a new one in its place. The windows were larger than those in the former building, but corresponded with them to a material extent. It was held that the easement was not abandoned, and the defendant was restrained from obstructing the access of light to the new windows, so far as they corresponded with the windows in the old building. And, in the same year, Vice-Chancellor Bacon held, in Greenwood v. Hornsey (55 L.T. Rep. 135; 33 Ch. Div. 471), that the mere alteration of a building containing ancient lights did not of itself imply an abandonment of the right to the access of light to any substituted building, but the intention to abandon must be clearly established by evidence. And what evidence is sufficient for this purpose was considered by the Judicial Committee of the Privy Council in James v. Stevenson (68 L. T. Rep. 539; (1893) A. C.162). This was an action to assert a right of way granted by A. to B. by deed in 1839, the appellant--whose predecessor A. was-pleading that it had been abandoned. Non-user of the right was proved over certain portions of the way, also user by the appellant and his predecessors for farming purposes of the land over which the way existed. But it was held tbat neither of these circumstances was conclusive to prove an abandonment of even a portion of the right. As Sir Edward Fry remarked, “It is one thing rot to assert an intention to use a way, and another thing to assert an intention to abandon it.”
HOW TO PERUSE AN ABSTRACT OF TITLE. As a rule, counsel or a solicitor for a purchaser of land (though not for an intending mortgagee) has first to peruse, and carefully consider, the agreement for sale and purchase, or the contract and conditions of sale, as the case may be. In doing this, any special stipulations should be marked in pencil. If the sale is by auction, the particulars must be carefully gone throu and anything special appearing therein should be noted ; and, if there are any tenancies, a note should be made to call for the lease or agreement.
As pointed out by Lord St. Leonards, in his Treatise on Vendors and Purchasers, an abstract should, if possible, be perused at one sitting.
In perusing the abstract, except in very simple cases, it is usual, and very advisable (at least for ordinary practitioners), to make a short epitome of it; and, if the root of title contains many rccitals, it will often be most convenient to epitomise such recitals in chief.
This is usually done on half sheets of draft paper, with a 2in, margin. A convenient form of heading for such epitome is as follows : “ Abstract of title of A. B. and his mortgagees (or as may be] to a freehold messnage, farm, and lands, at C.
p. How much the epitome should contain must depend largely on the experience of the practitioner. Beginners ought to make rather a full epitome, but a short one, if correct, is easier to work by. In the margin opposite each document it is convenient to insert the page of the abstract at which it begins, and, if it is a long document, the page at which particular parts of it-as, for instance, the parcels-begin, should also be inserted. In such margin should also be inserted, in the case of long abstracts, a note as to whether the deed is covenanted to be produced, or is to be handed over on completion, or an acknowledgment is to be given to the purchaser of right to its production.
The object of these marginal notes is to facilitate the preparation of the draft conveyance.
Before making an epitome of any document the abstract thereof must of course be carefully perused, and the effect thereof be ascertained. In so doing it should be seen that the stamp (if marked on the abstract) is correct. If any of the parties are under disability, such as marriage of a woman, or bankruptcy, or are a corporation, &c., a cross should be placed in the margin opposite the name of such party in order to remind the practitioner of the fact. Whenever anything special occurs, such as a mortgage or a life interest, a marginal note should be made as the foundation of a requisition (if not precluded by the contract or conditions of sale). A word or two is generally sufficient, such as
query paid off," query dead.” Opposite the parcels, if there is any question of identity. the word " identity" should be written in the margin as the foundation of a requisition. If the property is held in undivided shares it will often be necessary to divide the epitome into separate headings, such as “ As to the one-fourth share of B.,” and so on. If any documents subsequent to the root of title are recited in any of the abstracted documents, but are not abstracted, an abstract in chief and production of same should be called for.
No particular form of words of alienation is necessary, provided the intention to pass the estate appears. Copies of all plans referred to in the abstract should be called for and onght to be supplied at the vendor's expense as forming an integral portion of the abstract. If the deeds contain express covenants for title they must be carefully perused, as they sometimes refer to existing incumbrances, and are the only intimation thereof.
If a deed is executed by attorney, production of the power should be called for.
ABANDONMENT OF EASEMENTS. There is no time fixed by law for the non-user of an easement to amount to an abandonment. It has been sometimes thought, on the analogy of the Prescription Act, that twenty years' non-user must be shown ; but the Prescription Act deals solely with the proof of the existence of an easement, and does not touch the cesser of it by abandonment or otherwise. The true question to be answered in such a case is, what was the intention of the owner of the easement? Did he intend to abandon it or not? As Lord Chief Justice Denman said in Reg. v. Chorley (12 Q. B. 515), in 1848, “ the period of time is only material as one element from which the grantee's intention to retain or abandon his easement may be inferred against him ; and what period may be sufficient in any particular case must depend on all the accompanying circumstances.” The defendant in this case had been indicted for driving a carriage through a narrow lane which was a public footway. He set up as a defence a private right of carriage way, preceding the public user, and inconsistent with it. The question was, whether this right had been released or abandoned, and the jury was directed that no interruption by the public for a less period than twenty years could destroy the private right. After verdict for the defendant, the case was taken to the Court of Queen's Bench, and a new trial was granted on the ground of misdirection. This was followed in 1867 by Crossley v. Lightowler (16 L. T. Rep. 438; 3 Eq. 279 ; 2 Ch. 478), where the same principle was applied. Dye works on the bank of a stream had not been used for more than twenty years, and had been allowed to fall into ruins, and this was held evidence of an abandonment of a right to foul the stream with the refuse from them. Lord Chelmsford, L.C. said: “The question of abandonment of a right is
Practitioners should always keep a close eye upon the legal estate, and should see that persons who give receipts for purchase money have power to give such receipts. And in registered counties it must be seen that the documents have been duly registered. Receipts for succession duty should be called for in the case of any beneficial devolution of the property by death since the 19th May 1853, and for estate duty in case of death since the 1st Aug. 1894.
In perusing wills a question of considerable difficulty often arises, namely, whether the trustees take legal estates in fee simple or not. This must be carefully considered.
In dealing with particular vendors, special precautions must be taken. Thus, in the case of a sale by the trustees of a charity, the consent of the Charity Commissioners must, as a rule, be obtained, even though the trustees have a power of sale; and in the case of railway companies selling superfluous land, they are bound to sell within a certain period after the completion of the works, otherwise the property vests in the adjoining owners.
A requisition as to dower is still necessary, as, for instance, when an owner in fee dies intestate, and the conveyance to him did not bar the dower. In the case of conveyances by married women inquiry should be made for settlements on their marriage ; and in the case of powers of charging or the like, inquiry should be made as to whether they have been executed, the object being to obtain a reply in the negative.
When the epitome is completed, and either before or after the requisi. tions have been answered, it will greatly facilitate the preparation of the draft conveyance if the practitioner places the letter R. in red ink in the margin opposite the epitome of each document which he intends to recite ir, such draft, and if he underlines in like manner the names of the parties to the intended conveyance; in the same way all incumbrances that have been got rid of should be marked as “paid off” or “discharged.” No attempt is made in this article to advise as to particular requisitions which would not be within the scope of it. For this the reader is referred to Comyn's Abstract of Title, by Mr. H. W. Challis ; to Mr. Gover's Treatise on Advising on Title ; and to Mr. Emmett's Notes on Perusing Titles. It is believed, however, that attention to the foregoing suggestions will considerably lighten the labours of the young practitioner.
THE COUNTY COURT SYSTEM. A CORRESPONDENT of experience writes :
The County Courts Bill brought in by Mr. Monk and others (which is printed in your issue of Saturday last) proposes to create nineteen special circuits, and to increase the salaries of the judges on those circuits from £1500 to £2500 per annum. When the list of circuits selected for this purpose (as contained in the first schedule to the Act) comes to be examined, it will probably be found that some may well be eliminated, while one or two may have to be added. A list of fifteen would comprise all circuits which seem to have a fair claim to be regarded as special.” That involves the provision of £15,000 per annum for additional salaries, and it has been asked, where is this to come from?
The answer to this question is to be found in the rectification of an existing defect in County Court organisation, which must, sooner or later, be taken in hand, and which certainly ought to be dealt with before an extended jurisdiction is conferred upon them. Excessive decentralisation at present causes a great waste of judicial time and strength in the County Court system. Notwithstanding the vast development in our means of locomotion during the past fifty years, judges are still being sent into remote holes and corners of the land, where, when they arrive, there is little or nothing for them to do.
By absorbing the smaller ontlying districts into the nearest central district, and reducing the offices of the former to the position of branch offices or sub-offices of the latter, as their court-town, the number of circuits might well be reduced by one-fifth. Ten circuits (at least) would thus be absorbed, the requisite £15,000 per annum would be available where it is wanted, and a much needed improvement in the machinery of the County Court system would be effected.
tingham, where I was articled, the County Court only sits once a month here, and, if there is any delay in serving a default summons, the action is postponed to the next month's court, involving a delay of from seven to nine weeks after issue of procese.
Then the defendant frequently pays in by Friday night's post (our courts are always held on Mondays), and, as there is really nothing to do to prepare for the bearing, I can get nothing allowed for costs. En passant let me add that default summonses are a delusion and a snare; the defendant invariably tears off the slip, and gives notice of intention to defend-merely to gain time. The only advantage is that the registrar calls them over, and, if no one answers, takes the undefended defaults at 1 p.m; and, as an affidavit is on the file, he requires no further proof, and so a little time is saved. But the witnesses have to attend just the same--have to go up to the court in the morning to see if the case is really defended, and to go up again afterwards in case, after all, the defendant should turn up.
The success of the County Courts in any event depends largely on the judge, as the power of appeal is limited. The late judge was a thorough gentleman, but his temper was very uncertain, and he was very much given to jumping at plaintiff's or defendant's case, interrupting, flurrying witnesses and himself, and snapping at advocates. Eventually one advocate, of whom at first he had a great dislike, fairly wore him out by sheer persistency, and it became a commonplace that, if that particular advocate was against you, you had no chance of winning unless yonr case was absolutely certain.
Judge is an ideal County Court judge. He apparently had no large practice at the Bar, and, comparatively, was unknown. But he always keeps his temper, listens to what is said in opening, allows no. banky-panky, or mere prejudicial matter, wastes no time, and is a good all-round lawyer. If a case depends, say,on (a) negl nce and (b) damages, he does not allow time to be wasted in calling a lot of witnesses as to damages whilst negligence is doubtful. An advocate, of course, must prove both heads and call his witnesses one after another until he closes his case, but in a busy court this is a serious matter, and the judge's intervention materially assists him.
On the other hand, there was no law except the length of the judge's foot under the late Judge in cases under £20. He would listen to an advocate quoting cases and then decide like a Cadi under a palm tree, and would always refuse to allow an appeal. I don't say I often quarrelled with his view of the facts as between man and man, but that is beside the point.
Our present judge, Judge -, appears likely to prove a useful judge; but it is whispered that bankruptcy is not his forte, and that you must shovel in cases hot and strong if you wish to win; so that, in truth, you win by the weight of authority!
These facts only prove that County Court judges are like other judges, only human and fallible ; but the results are more serious because each County Court judge is isolated. He is not like a High Court judge always rubbing shoulders with other judges, nor can he conceal his ignorance of some particular branch by sitting with a brother judge who is well up in that branch, and saying “I agree !" And again he has not the advantage of the contact with a learned Bar, who are, or have been, or may be, able to meet him on equal terms. Mr. A. B., Q.C., may have been my Lord's tutor, or co-pupil, or may be a brother Bencher, &c., and my Lord knows that Mr. A. B. is learned in some particular branch of law, and he, therefore, attaches some weight to Mr. A. B.'s utterance. But the County Court judge knows nothing of the legal attainments of the solicitors who practice before him, and is not so amenable to influence.
These matters render the extension of County Court jurisdiction by no means an unmixed blessing, unless something can be done to guard against the undue development of individual idiosyncracies. There is another difficulty which is inherent in the system, and that is the difficulty which a gentleman steeped in metropolitan ways has in acquiring local colour. Our natives are curious folk---until you know them ; so are colliers-and as the judge is most frequently jury as well, he is extremely liable to error in weighing evidence and drawing inferences from expressions used or from conduct.
As to the County Court Bill :--I do not half like the provisions as to chief and assistant registrars as they stand. The allowance of private practice is a much more serious matter in small places than in large towns. I think the post should in all cases be a salaried one; that private practice should be debarred, only official or quasi-official posts being allowed to be held under it, such as clerk to magistrates, to school board, toguardians, urban and rural district councils, income tax commissioners, drainage commissioners, to visitors of asylum, &c.
Judges should be allowed to retire on a pension--at least every third vacancy on the High Court Bench should be filled by taking a judge of County Courts. The fees should be reduced. The costs should be placed on a more rational basis--the work for a case involving £9 often being exactly the same as one involving £19. Apart from mere debt recovery cases something in the nature of pleadings in place of the loose particulars should be required. The registrar's contentious jurisdiction might at once be raised to £10, and he ought to sit at least once a fort. night. This would reduce the volume of work into reasonable compass, and not be dependent on the judge being present; so that when the judge comes he can start right away.
A LINCOLNSHIRE Solicitor writes :
Like you, I have not been enamoured of County Courts, and have long thought the remedy might be found in having younger and more energetic men on the High Court bench, together with an amendment of High Court procedure in regard to claims for liquidated sums. Nine-tenths of the actions for such sums have no possible defence, but, owing to the facilities with which leave to defend is given, they get hung up for six months. The Short Causes List is absolutely useless outside London if the writ is specially indorsed and place of trial is local, for a change of venue to London after leave to defend is almost impossible. However, it appears hopeless to look for relief in this quarter, and I think you are right in taking up the modification of the County Court system, which is absolutely necessary, as it has outgrown the limits laid down on its inception. The County Courts share with magistrates the distinction of being the Cinderellas of our legislators. Their organisation is not fit to discharge the duties of courts for cheap and easy recovery of small debts, and those of district courts for hearing of pleas generally. As far as the former duties go, they might far better be called “ courts for the protection of dishonest debtors.”
It is curious that you should now do what I did nearly seven years ago, viz., compare the cost of outlay required in the High Court and County Court respectively. I had to do this to satisfy a client of my reasons for issuing writs and not summonses. Another reason was that, unlike Not
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COMMENTS ON CASES.
ALTHOUGH a mortgagee is not a trustee of his power of sale, and may exercise it to suit his own convenience, provided that the sale is bonâ fide, he is a trustee of the surplus proceeds of sale for the persons interested in the equity of redemption. The Court of Appeal have made a first mortgagee in Eley v. Read (76 L. T. Rep. 39) pay to the second mortgagees interest at the rate of 4 per cent. per annum on such surplus, when it was not paid over until four years after the sale took place. It is true that the second mortgagees stood by for four years with the knowledge that they had not been paid, but conversely the first mortgagees also stood by knowing that they ought to have paid over the money.
The courts are averse to allowing mere delay to be a defence, where no statutes of limi. tation apply, and the cestuis que trust have not done anything actively to lead the trustee to suppose that they have given up their claim (see De la Rochefoucauld v. Boustead, 75 L. T. Rep. 502; (1897) 1 Ch. 196). In Charles v. Jones (56 L. T. Rep. 848; 35 Ch. Div. 544) the late Lord Justice (then Mr. Justice) Kay, where the mortgagee had not known to whom the sarplus belonged, said : “ The daty of this mortgagee was at least to set this money apart in such a way as to be fruitful for the benefit of the persons beneficially entitled to it. To that extent and in that manner he was, according to my understanding of the law, in a fiduciary relation to the persons beneficially entitled to it
I hold, there. fore, that the defendant Jones is liable to pay interest at 4 per cent. upon the money remaining in his hands after he had paid himself his debt and costs."
It seems clearly necessary in leases of business premises, where the lessor is intended to pay the water rate of the premises, including an extra sum payable in respect of an increased supply necessary for trade purposes, to set out the covenant in express terms. Thus, in Floyd v. Lyons and Co. (noted ante, p. 462), the lessor simply covenanted to pay the water rate and other outgoings, but explicitly permitted the tenants to employ the premises for the purposes of their refreshment business, which involved necessarily a large amount of extra water being consumed, and yet she was held by the Court of Appeal (reversing Mr. Justice Kekewich, ante, p. 181) to escape from the payment for such water. Looking to the very wide definition of a water rate in the Waterworks Clauses Act of 1847 as “any rent, reward, or payment to be made for a supply of water," and to the lessor being aware of the purpose for which the premises were taken, the decision does not carry out the evident intention of the lessees to free themselves from all such demands, except as regards gas and electric light, by paying an inclusive rent.
The old maxim of Vicarius non habet vicarium has just been recognised by Mr. Justice Stirling in relation to the somewhat difficult questions arising with regard to the authority of an auctioneer's clerk: (Bell v. Balls, noted ante, p. 463). It was there held that the clerk could not be . delegated to sign the memorandum which had been prepared by him. In Pierce v. Corf (29 L. T. Rep. 919 ; L. Rep. 9 Q. B. 210) a clerk was declared incapable of acting as agent for a buyer by signing his name. In this case the clerk, on the sale being effected, made an entry in the auctioneer's “sales ledger” of the price and purchaser's name; this book was in reality a private document, and contained symbols under the heading “ Reserve,” which showed that it was not intended for the public eye. In Bird v. Boulter (4 B. & Ad. 443) there is an apparently conflicting decision where the clerk entered the buyer's name in a sale book, but the procedure was so different as to validate the act and render it binding on the parties concerned. Here the clerk called aloud the purchaser's name, the latter nodded, and the entry was made. This was held, contrary to the last-named case, to constitute a memorandum in writing within the Statute of Frauds. The clerk also was regarded as impliedly authorised to act as agent for the purchasers for the purpose of saving them the trouble of coming to the table and signing their names themselves. The general rule applicable to the question seems to be that the auctioneer must himself conduct the sale. In point of fact, however, the clerk not infrequently actually sells himself less important portions while his superior is otherwise engaged. This is done at the latter's own risk, for as an agent he is responsible if any charge of incompetence be raised. Again, the sale might itself be regarded as null vnless the purchaser sanctioned this course being taken. In matters not so closely connected with the sale the clerk las authority. In an American case of Commonwealth v. Harvey Hamden (19 Pick. 482), at a sale of some pews, the auctioneer employed an agent to use the hammer and make the outcry under his immediate supervision, and this was held good. It seems questionable whether under such circumstances the clerk should be licensed. Babington on Auctions, at p. 90, lays it down thus: “If an auctioneer, without the consent of his employer, permits his clerk to sell, he will be liable to an action, at the suit of such employer, for any loss which may be thereby occasioned; but he will not be liable if his clerk sells with such consent. Where an auctioneer employs his clerk to sell, such clerk cannot be compelled to account to the owner, but to his master only.”
The Courts rise for the Easter Vacation on Wednesday the 14th inst. Mr. Justice Cave will be the Easter Vacation judge.
Ex parte Motions and the Interlocutory List will be taken in the Court of Appeal on Tuesday next instead of Monday.
City of London common jury actions will be taken on Monday, the 5th April next.
A Divisional Court in Bankruptcy will sit on Monday, Tuesday, Thursday, and Friday next week, to hear appeals from County Courts. The following will be in the list on Monday: Re Jubb; Ex parte Burman and another-Re Hawley; Ex parte Ridgway and SonsRe Woodroff ; Ex parte Woodroff—Re Raatz; Ex parte Carlhian-Re Raatz; Ex parte Raat::--Re Oborne; Ex parte Wheeler-Re Bailey; Ex parte Andrews.
Lord James has become tenant of Ferne Manor, with its extensive shooting, the property of Sir Walter Grove, near Shaftesbury.
Lord Herschell presides, on the 11th May, at the festival dinner in aic! of the funds of the East London Hospital for Children and Dispensary for Women, Shadwell.
The Legal Musical Society will hold the last smoking concert of this season on Wednesday, the 7th April, at the Freemasons' Tavern. Mr. William Graham will take the chair.
At the annual general meeting of the Equity and Law Life Assurance Society, held on the 16th ult., the Right. Hon. Edward Baron Macnaghten was elected a director in the place of the Right Hon. George Denman, deceased.
The will of Mr. Samuel Taylor, Q.C., of 5, Hague-road, Withington, Manchester, who died on the 26th Nov. last, has been proved by Geoffrey Clive Taylor, M.B., the son and executor, the value of the personal estate being £919.
Lord Russell of Killowen continues to make good progress towards recovery. Delightful weather has prevailed at Torquay, and the Lord Chief Justice is able to spend a considerable portion of each afternoon in the open air. It is not anticipated that his Lordship will be sufficiently well to resume his duties during the present sittings.
The retirement, after many years' service, is announced of Mr. Peter Paget, the Official Assignee, and Mr. J. C. Austin, two of the oldest officials of the London Bankruptcy Court. They were held in high esteem, not only for their personal qualities, but for the ability and assiduity with which they discharged the duties appertaining to their offices.
Mr. John Cranch, high bailiff of Kingsbridge County Court, committed suicide on Tuesday. As he did not return home at his usual time his daughter went to his business premises in Fore-street, and found him lying on the floor with his throat cut. Deceased had filled the office of high bailiff for nearly forty years.
Mr. Henry Woolcott, solicitor, 34, Castle-street, Liverpool, who has been appointed branch manager at West Kirby of the Bank of Liverpool Limited, will continue to practise as a solicitor in the firm name of Woolcott and Co., making his head office at the bank premises at 6, Grange-road, West Kirby, with branches at Liverpool and Hoylake. The bank will open on Wednesday, the 21st April.
The Benchers of the Inner Temple have hit upon a happy notion for keeping alive the memory of the Diamond Jubilee year, and, at the same time, paying a graceful compliment to the Houses of Parliament through their respective speakers. It happens that both the Lord Chancellor and Mr. Gully, Q.C., are members of the Inner Temple, so that, in commissioning the Hon. John Collier to paint their portraits to adorn the Inner Temple-hall the Benchers are adhering strictly to the traditions of the place.
His Honour Judge Austin made a public announcement at the Bristol County Court last Tuesday, with reference to the business on the 21st, 22nd, and 23rd June, when the celebration in connection with the Queen's record reign will be in full swing. He was told, he said, that the 22nd June was to be a general holiday, and that day he did not propose that the court should sit at all. No canses would be entered either for the 21st, 22nd, or 23rd, and he had so directed the registrars, but if there was any long case which the parties desired him to take on an open day he wonld take it on the 21st or 23rd. He would sit on these days, if necessary, but he did not propose to sit on the 22nd at all.
JUDICIAL decisions have been of late so consistently adverse to auditors that that hard-worked and responsible section of the community will be pleased to see that the recent decision of Western Counties Steam Bakeries, &c., Company has been reversed (noted ante, p. 461). Mr. Justice Stirling had felt himself constrained to hold that gentlemen who had never been formally appointed auditors, but merely by desire prepared a certificate that the accounts and balance-sheet were in harmony, and who accordingly acted only as chartered accountants, were in reality “ officers of the company,” and within the mischief of the recent decisions. Sect. 10 of the Companies (Winding-up) Act 1890 specifically mentions that tho court's power of assessing damages is against delinquent persons who have taken part in the formation or promotion of the company, or any past or present director, manager, liquidator, or other officer of the company. The Court of Appeal have now held that the term “officer” connotes an “office," and that the auditors in this case, although having done the work which they would have had to do had they been appointed the auditors of the company, were not holders of a recognised office, with the duties and emoluments attached to it. At p. 208 of Emden on Winding-up (5th edit.), the learned County Court judge shows that the following cannot be amenable to the summary jurisdiction of sect. 10, viz., executors of a deceased director or officer, a banker, or a solicitor acting for the company in its stage of formation, at any rate primâ facie. The circumstances seem to bring the case within the possible exceptions present to the mind of the late Lord Justice Kay in his judgment in The London and General Bank Limited (72 L. T. Rep. 611, at p. 613; (1895) 2 Ch. 166).
The New York State Library has just issued its seventh annual comparative summary and index of State legislation, covering the laws passed in 1896. Each Act is briefly described or summarised and classified under its proper subject-head, with a full alphabetic index to the entries. Perhaps the most important legislation of the year was that enacted by the people directly through their votes upon the numerous constitutional amendments submitted to them. The bulletin records the amendments defeated as well as those adopted, a special table arranged by States being inserted for convenient reference. It is of interest to note that, of fiftyseven separate constitutional amendments voted on, only twenty-four were adopted.
In the House of Commons, on the 29th ult., Mr. Lambért, on behalf of Mr. Billson, asked the Attorney-General whether he was aware that considerable dissatisfaction existed with regard to the proposed new County Court rule requiring a deposit for travelling expenses from plaintiffs when the defendant resided more than twenty miles from the court; and whether the operation of the rule might be postponed pending further consideration. The Attorney-General, in reply, said that the operation of the rule has been postponed until the month of May, in order that the County Court judges may meet together to consider the objections which have been raised to it. I ought, however, to add that the rule was passed to restrict the growing practice of summoning defendants to courts at a great distance from their place of residence.
The late Lord Justice Kay has left £1000, free of legacy duty, to bis “faithful clerk," Mr. George V. Wood, in addition to having presented him with a cheque for a substantial amount when he retired from the Bench. This recalls other instances of the generosity of judges and barristers towards their clerks. The following judges left their clerks these legacies :--Mr. Justice Quain, £5000; Mr. Justice Crowder, £3000 ; Mr. Justice Manisty, £2500; and Lord Justice Thesiger, £1000. Of the members of the Bar who have provided generously for their clerks, Sir John Karslake, Q.C., left his clerk £2000, and Mr. Dowdeswell, Q.C., not only gave his clerk a legacy of £1300, but also appointed him an executor of his will.
Each of the following members of the Bar left their clerks £1000 : Mr. McIntyre, Q.C., Mr. Crompton, Q.C., Mr. Southgate, Q.C., Mr. Aspland, Q.C., and Mr. Levy; while Mr. Samuel Joyce left his clerk an annuity of £60, and Mr. Lyon gave his clerk £500.
The following is a resolution passed at a meeting of Liberal agents, held at Norwich, the 17th March :-“That this meeting of Liberal agents cordially indorses the opinion expressed by the Law TIMES of the 9th Jan. last, that the decision of the Court of Queen's Bench in the case of Reg. v. Soden 'involves a startling principle for the interpretation of statutes,' and that to give a revising barrister a dispensing power which may deprive a voter of the franchise is a strong exercise of judicial authority. This meeting, therefore, desires to call the attention of the Liberal Central Association and its legal advisers to the importance of the principles involved in this case, and respectfully requests them to take sach steps as they may deem best calculated to preserve the safeguards provided for voters by sect. 28, sub-sects. 9, 10, and 11 of the Parliamentary and Municipal Registration Act 1878, and to prevent the disfranchisement of duly qualified electors by the operation of rules, made by revising barristers, contrary to the provisions of the statute.”
The Solicitors' Managing Clerks’ Association held their second smoking concert at the King's Hall, Holborn Restaurant, on Thursday, the 25th ult. Mr. Frederick Thebawke Davies occupied the chair, and Mr. Charles Gould the vice-chair. The concert was in every way a great success, but the programme somewhat long. The favourites appeared to be Mr. Walter Grace, Mr. Richard Temple, Mr. Bob Rae, and the well-known Dutch Daly. Among those present were : Mr. Justice Vaugban Williams, Mr. Justice Byrne, and Messrs. T. T. Bucknill, QC., M.P., F. O. Crump, Q.C., T. W. Wheeler, Q.C., R. Bramwell Davis, Q.C., H. T. Eve, Q.C., J. M. Astbury, Q.C., L. L. Pemberton, Charles Burney, Boydell Houghton, E. W. Martelli, E. C. MacNaghten, E. H. Tbirlby, W. Ward, J. Kemp, W. H. Elliott, A. Braid, J. Freeman, C. J. Cocks, F. J. Peirson, W. G. Andrews, J. Sully, Boughton, and Joseph Wright. The energetic secretary, Mr. Alfred Turner, assisted by Messrs. G. J. Offer and T. C. Tunstall, were busy seeing that everything worked smoothly. Messrs. E. Cairns, F. C. Goodchild, and a few other prominent members wore unfortunately absent. During the evening a collection was made in aid of the Prince of Wales's Hospital Fand in commemoration of the sixtieth year of the Queen's reign. The collection realised about £41.
A farewell dinner was given on Saturday night, at the Café Royal, by members of the Divorce Court Bar, to Mr. Bayford, Q.C., on his retirement from practice. Mr. Bayford early in his career showed his ability in the conduct of probate and matrimonial cases, and has for many years been recognised as one of the most astute advocates practising in that court, and his absence from the Queen's Counsels' row will be regretted by many. He was educated at Trinity Hall, Cambridge, and besides being a Wrangler and bracketed first in law, represented his University at cricket during the years 1857-8-9. After le ng called to the Bar in 1863, he joined the Home Circuit, and was in 1885 appointed one of Her Majesty's Counsel. He was elected a Bencher of the Inner Temple six years later. Himself the son of a “blue” (his father rowed in the first race against Oxford in 1829), he is the father of one, and although he is retiring from the court, his name will be remembered there, as his son is following in his father's footsteps. At the dinner Mr. Inderwick, Q.C., presided, and among those present were his Honour Judge Willis, Q.C., Mr. Rider Haggard, Mr. A. W. à Beckett, Mr. Bargrave Deane, Q.C., Mr. Registrar Pritchard, Mr. Registrar Hannen, Mr. Registrar Musgrave, and Messrs. Powles, Laing, Barnard, Woodfall, Middleton, Pritchard, Murphy, Priestley, Mavrojani, Willock, Walter Inderwick, Le Bas, Gwynne Hall, Rayden, W. O. Willis, R. F. Bayford, and Dibb.
The Flemish murder trial in New York City, which lasted forty-two days and resulted in the acquittal of an alleged matricide, was the topic of much serious comment and of not a little raillery in the city newspapers. As a specimen of the latter was the following excerpt, the sarcasm of which may possibly apply to many localities.-“Now, children, what was the object of a murder trial in the last century ? "_" To prove a murderer guilty and hang him for the good of the community."'.
Right; and what is the object of a murder trial at the present day?". “ To prove the guilty innocent and protect him from the punishment he deserves." Quite right. What is the prosecution ? and what is its duty ? " The prosecution is supposed to be the State, and its duty is to make pegs for the prisoner to hang his defence upon.”—“Good; and what is the defence ?”. ** The defence is the court oracle, who instructs the judge, the jury, and the prosecution in behalf of the prisoner, and threatens them with reversals unless they agree with his views.”_" Who is the judge ? "_" The judge is the assistant defence, who is afraid to charge against the prisoner lest the latter be convicted and there arise a new trial. He prefers to acquit the guilty in order to save his reputation.” -“ Who are the jury ? "_" Twelve men supposed to be peers, who get all tangled up with the evidence and vote for acquittal because they don't know what else to do."_“ Very true ; and who is the defendant ?
“ The defendant is the leading man, whose duty it is to amuse the spectators and make fun for the newspapers.”. --That will do.” Green Bag.
A report has been brought up from the Law and City Courts Committee on their proceedings under a reference instructing them to carry out the arrangement that the City of London Court should sit five days a week. They stated, in substance, that the judge of the court (Mr. Commissioner Kerr) had fixed each week day in January for a sitting of his court, but the corporation, having rejected a report recommending an increase of his emoluments, the order was cancelled, and only three days' sittings per week were held, the judge urging that, as the court had refused him the means of employing assistance in order to hold continuous sittings, he was unable to undertake to hold them. The committee then consulted Sir Edward Clarke, Q.C., and Mr. Danckwerts, who gave it as their opinion that, under the Act of 1852, by which the court was registered, the corporation were empowered to fix the days of the sittings apart from the judge altogether, and also recommending that, if the judge did not carry out his promise to hold continuous sittings in respect of which an addition of £500 a year to his emoluments had been granted, the corporation would be justified in withholding payment of that amount. The committee now recommended that for the months of May and June, and in the future the corporation should fix the days for bolding the City of London Court. Mr. Double moved the adoption of the report. A letter was read from Mr. Commissioner Kerr respectfully disputing the authority of the court, apart from him, to fix the sittings of the City of London Court, over which he bad presided for thirty-two years, and asking for delay in dealing with the matter, in order that he might submit his views to the corporation. At the instance of Mr. A. C. Morton the debate was adjourned, pending the consideration of the judge's views.
The Lord Chancellor presided at a meeting held on Wednesday, at Inner Temple-hall, in fartherance of the Inns of Court Mission, which was formed nearly twelve months ago. Those present included Mr. Baron Pollock, Mr. Justice Grantham, Mr. Justice Kennedy, Mr. Justice Bruce, Viscount Cross, Sir Richard Webster, Q.C. (Attorney-General), A. R. Jelf, Q.C., A. M. Channell, Q.C., E. Macrory, Q.C., F. 0. Crump, Q.C., the Bishop of London, and many members of the Bar. Lord Halsbury said that for some time past it had been felt by many members of the Inns of Court that the poor of London, where the great majority of the members resided and practised, had a strong and peculiar claim upon their assistance, which had never yet been rendered in any collective capacity by the Profession, although most valuable work had been done by individuals in various parts of the metropolis. In December 1895 the members of the Bar were consulted on the subject, and the result was so satisfactory that the organisation was formed and the work started. The district lying immediately in the neighbourhood of the Inns of Court contained a very large population, to a considerable extent of a lower and poorer class, and much good work amongst them could be done---such as in the management of clubs, both for men and boys, gymnasia, cricket, and football clubswhich was at present necessarily thrown upon the clergy, and took them away from their more distinctly clerical duties. What was wanted was to assist in religious, social, and educational work in St. Giles and the adjoining districts, and extend it where it seemed to be wanted as opportunity offered and means came in. He felt sure that the members of the Bar would never be backward in assisting in any good work, and that the mission would be well supported. The Attorney-General moved : “ That this meeting, having regard to the moral and physical needs of the poorer districts of central London in the immediate neighbourhood of the Inns of Court, urges all members of the Inns to render hearty support to the work of the mission.” He said that great good would be obtained by the work which the miseion would be able to do. Mr. Cozens. Hardy, Q.C. seconded the motion, which was supported by Lord Cross and adopted. Mr. Justice Kennedy proposed a resolution recognising the pressing need of personal service in order to render efforts of the nature contemplated by the mission successful, which was seconded by Mr. Cecil Chapman (who said that £500 a year would be necessary efficiently to carry on the mission), supported by the Rev. H. G. D. Latham, and adopted.
The partnership of Messrs. Barlow and James, solicitors, of Ingram House, Fenchurch-street, having expired, the senior member of that firm, Mr. Stephen B. Barlow, has taken Mr. George Barlow, his nephew, into partnership under the style of Barlow and Barlow.
The annual meeting of the Metropolitan Discharged Prisoners' Aid Society was held at the Old Hall, Lincoln's-inn, on Tuesday last; Mr. Justice Kekewich, vice-president, in the chair. Mr. Justice Henn Collins and Mr. Justice Kennedy were among those present. The report stated that the total number of cases dealt with by the society during the past year was 1317, and the average cost of assisting discharged prisoners for the year had been 15s. 3d. The Chairman said the society was not sufficiently well supported because it was not so well known as it ought to be. It was one of many societies which really did the same work. The duties of the society lay entirely with the Pentonville Prison, the numbers discharged from which prison were about 1000 per month. The resources of the society were very small. The Commissioners of Prisons were able to make a certain contribution every year for the purposes of the society, but the grant only amounted to £238 per annum ; so that for a very large portion of its work the society depended upon the contributions of the charitable. Experience had shown that a large number of criminals, and especially of those who had been committed for their first offence, were not by any means irredeemable. The object of the society was to approach those criminals, to make them acquainted with the fact that they would be looked after, to communicate with them, to ascertain for what they were fit physically and mentally, and to assist them with advice, with money, with clothes, and with necessaries to obtain a living in a respectable manner, to take them away from their surroundings, and to prevent them from coming into contact with the criminal classes, to which they really did not belong, and to give them a fair start in life. He thought the object was a most deserving one, and he commended the society to the support of his hearers. Mr. Kenelm E. Digby (Permanent UnderSecretary of the Home Department) said that during the short time he had been at the Home Office he had been impressed with the importance of prisoners' aid societies. Since 1880 the number of prisoners belonging to the “ star class”--those who had no criminal antecedents--in convict prisons was 2183. Of that number only twenty had returned to penal servitude under fresh sentences. The figures with regard to women were even more favourable ; of ninety-three female convicts who had been placed in the "star" class not a single one had returned to penal servitude. Mr. T. T. Buckvill, Q.C., M.P., Recorder of Exeter, and Mr. de Ratzen, senior magistrate of Marylebone, also bore testimony to the value of the society's work, and the proceedings terminated with a vote of thanks to the chairman, proposed by Dr. Blake Odgers, Q,C.
work gold mines in West Australia, the framers of the memorandum of association having in view one particular mine near Coolgardie in West Australia ; that to work that mine was the paramount object for which the company was formed ; and that, as the company did not propose to work some other mine in West Australia, but one in Victoria, it could not be fairly said that this was carrying out the objects of the company. Held, therefore, that the real object for which the company was formed had failed ; that its substratum having gone, the order for winding-up the company had been properly made : and that the appeal must be dismissed with costs. Re The Haven Gold Mining Company (46 L. T. Rep. 322 ; 20 Ch. Div. 151) considered. Decision of Byrne, J. affirmed.
[Re The Coolgardie Consolidated Gold Mines Limited. Ct. of App. No. 2: Lindley, Smith and Rigby, L.JJ. March 16, 18, and 19.Counsel: for the appellants, Buckley, Q.C. and Upjohn ; for the respondents, Swinfen Eady, Q.C. and E. F. Spence; Eve, Q.C. and Ingpen. Solicitors : for the appellants, Bonner, Thompson, Burnie, and Co.; for
the respondents, Bull and Bull ; P. J. Gordon and Son.] Landlord and Tenant-Lease of Hotel -Covenant not to purchase Wines, 8c.
except from Lessor-Proviso for Reduction of Rent--Covenant running with Land-Severance of Ownership of Wine and Spirit Merchant's Business and Ownership of Reversion.--In June 1882 A., who was a wine and spirit merchant, granted a lease of an hotel and premises to B. for a term of thirty years, at a rent of £1500 a year, payable quarterly. The lease contained the usual covenant by the lessee for payment of the rent, and a covenant as follows : " And the lessee doth hereby also covenant with the lessor, his heirs and assigns, that he, the lessee, shall not, nor will during the term hereby granted, buy, receive, sell, or dispose of, either directly or indirectly, nor suffer or permit to be bought, received, sold, or disposed of, either directly or indirectly, in, upon, out of, or about the said premises, or any part thereof, any foreign wines or any spirits, except gin, or other exciseable liquors what. soever, other than shall have been bona fide supplied by or through the lessor, or his successors or successor, assigns or assign, provided the said person or persons shall be willing to supply the same, of good and proper quality, to the lessee at the fair current market price thereof." The lease contained, also, the following : “ Provided also, and it is hereby agreed and declared, that so long as the lessee shall well and truly observe the covenant on his part lastly hereinbefore contained then the lessor will allow to the lessee an abatement of £75 from each quarterly payment of the rent hereinbefore reserved, but immediately upon any breach of the said covenant such abatement shall cease.” In March 1883 A. died, and in July 1883 the executors and trustees of his will sold the goodwill of the business of a wine and spirit merchant, formerly carried on by him, to C. In Sept. 1883 B. assigned the lease of the hotel to a company. The company, having always purchased its wines and spirits from c. in accordance with the terms of the covenant in the lease, claimed to be entitled as of right to a rebate of £75 from each quarter's rent. The executors and trustees, however, contended that, upon the ownership of the wine and spirit business and the ownership of the reversion being severed, the covenant to purchase wines and spirits from A., his successors or assigns, ceased to be operative, and, consequently, that the company was not entitled to the benefit of the proviso. Kekewich, J., without deciding whether the covenant to purchase wines and spirits was binding or not, held that the company was entitled to the benefit of the proviso so long as it purchased its wines and spirits from C. On appeal: Held, that, although the covenant to buy wines and spirits did not in terms include the assigns of the lesseo, the burden of it ran with the lessee's interest under the lease so as to bind the company: (Tatem v. Chaplin, 2 Hen. Bl. 133; Clegg v. Hands, 62 L. T. Rep. 502 ; 44 Ch. Div. 503 ; Fleetwood v. Hull, 60 L. T. Rep. 790; 23 Q. B. Div. 35). Held also, that the company, as the assign of the lessee, was entitled to the benefit of the proviso just as much as it was bound by the burden of the covenant. Held, therefore, that the appeal must be dismissed with costs. Decision of Kekewich, J. affirmed.
[White v. The Southend Hotel Company Limited. Ct. of App. No. 2: Lindley, Smith, and Rigby, L.JJ. March 23.-Counsel : for the appellants, Farwell, Q.C. and C. Lyttelton Chubb; for the respondents, Eve, Q.C. and Martelli. Solicitors : for the appellants, Hewitt and Chapman; for the respondents, Mossop and Rolfe.]
NOTES OF RECENT DECISIONS NOT
COURT OF APPEAL. Company-\'inding-up-Substratum of Business gone-Special Object
stated in Memorandum of Association General Objects ancillary thereto-Failure of special Object--Companies Act 1862 (25 & 26 Vict. c. 89), s. 79, sub-sect. 5. - A petition to wind-up a company was presented by two shareholders, on the ground that the su ratum the company was gone. The company was incorporated in Oct. 1895. The objects of the company, as defined by its memorandum of association, were (a) to enter into and to carry into effect an agreement referred to in the articles, which was an agreement to purchase from the Yilgarn Exploring Company certain mining properties known as the Coolgardie mine in West Australia ; (b) to acquire mines “in West Australia or elsewhere,” and “generally to do all such things and conduct all such businesses as were contemplated by and permitted under the gold law and regulations of the colony of West Australia ; " (c) to work the mines, &c., mentioned in the agreement of purchase, " and any other mines, reefs, and rights which may from time to time be purchased, leased, or otherwise acquired by the company ; (1) “ to establish and maintain agencies for the purpose of the company in any part of West Australia or elsewhere :” (t) “to establish in West Australia or elsew bere a register of shareholders, and to take such steps as may be necessary to give the company, so far as may be, the same rights and privileges in West Australia or elsewhere as are possessed by local companies or partnerships of a like character, and, if required, to register the company in West Australia.” The Coolgardie mine turned out to be absolutely worthless, and had been abandoned ; but the company had entered into a new agreement with the Yilgarn Exploring Company, whereby the latter agreed to give to the Coolgardie Company a new mine in Victoria in exchange for what was in substance an absolute release from all claims in respect of the old mine, for which the vendors had already received £11,500. The petition was supported by a considerable body of shareholders, being a majority in point of value, but a minority in point of numbers. It was decided by Byrne, J., sitting for Williams, J., that the real object of the company was to acquire and work the Coolgardie mine ; and that consequently the substratum of the company was gone, and he made the usual winding-up order. The opposing shareholders appealed. Held, that where a company put in the forefront of its memorandum of association a special object as to which definite information could be obtained by intending subscribers, and the subsequent clauses of the memorandum contained a list of general objects, speaking generally, the reasonable mode of construing the memorandum was to say that the object first stated was the paramount object of the company, and that the other objects were ancillary and subservient to that object. Held aleo, that in the present case the real object of the company was to
HIGH COURT OF JUSTICE-CHANCERY DIVISION. Administration-Insolvent Estate-Specialty and simple Contract Debt
Simple Contract Crown Debt Priority Executor's Retaines Hinde Palmer's Act 1869 (32 & 33 Vict. c. 46).- A testator died, leaving debts due to specialty creditors amounting to £17,000, and debts due to simple contract creditors amounting to £253,000, including a simple contract debt due to the Crown of £2000. The assets realised in the administration of his estate amounted to £114,000. A summons was taken out by some of the specialty creditors for directions as to how the Crown debt should be borne as between the specialty creditors and the simple contract creditors. It was admitted that, in the first instance, the specialty debt and all the simple contract debts should rank pari passu, and, the estate being insolvent, a dividend ascertained. It was not disputed that the Crown debt would have to be paid in full, having regard to the fact that the assets were sufficient to discharge the specialty debts in full, and leave a sufficient balance to discharge the Crown debt also; but the question was, whether the amount of the Crown debt, after deducting the amount of the dividend thereon, ascertained as above mentioned, should be provided for out of the dividends of the specialty creditors and simple contract creditors, or out of the dividends of the simple contract creditors alone. It was urged on behalf of the specialty creditors that, before Hinde Palmer's Act 1869, the Crown