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BLUMBERG

v. LIFE INTERESTS AND REVER-KEKEWICH SIONARY SECURITIES CORPORATION.

[1896 B. 4531.]

Tender-Validity-Cheque-Authority of Solicitor.

A solicitor who is authorized to accept a tender of mortgage money on behalf of his client is not at liberty to accept a banker's cheque, and tender of a cheque by the mortgagor to the solicitor is accordingly insufficient.

THE plaintiffs in this action alleged that an indenture of mortgage dated July 10, 1891, whereby certain reversionary interests belonging to the plaintiffs were mortgaged by them to the defendant corporation as security for a loan by the corporation to the plaintiffs had been improperly obtained, and claimed to have the mortgage set aside, and an injunction to restrain an intended sale by the corporation of the reversionary interests.

On November 3, 1896, the plaintiffs, on an ex parte application, obtained an order restraining the sale conditionally upon the plaintiffs paying into court 400l. within a short time limited by the order; but no such payment was made.

On November 5, 1896, the plaintiffs' solicitor attended at the office of the corporation's solicitor for the purpose of paying off the mortgage, and there saw the managing clerk of the corporation's solicitor, who stated that the amount due on the mortgage was 3501. principal, 227. interest, and 337. costs, in all 4057., but that there was a further amount due for auctioneers' charges in respect of the sale, and, having communicated with the auctioneers through the telephone and ascertained the amount claimed by them, he stated that the total amount due was 4631. 7s. 10d. The plaintiffs' solicitor had with him 4007. cash and no more, and he therefore proposed to give his cheque on his bankers for 631. 7s. 10d. to make up the amount. The managing clerk expressed himself as willing to accept the cheque, and the p'aintiffs' solicitor then placed the cash and cheque upon the table and said, "Here is your 463l. 7s. 10d.,

J.

1896

Dec. 16.

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1896

KEKEWICH the amount which you have asked me for, and which I pay under protest." The managing clerk refused to accept the tender under protest, saying that he should proceed to a sale that afternoon, and that the tender was bad. The plaintiffs' solicitor then left, leaving the cash and cheque upon the table. The sale was proceeded with, and Louis W. B. Nutting, who was made a co-defendant to the action, was the purchaser.

BLUMBERG

V.

LIFE

INTERESTS, &C.
CORPORATION.

The plaintiffs now moved the Court for an injunction to restrain the defendants from completing the sale, and the question was argued whether the tender made by the plaintiffs' solicitor was sufficient, so as to justify the Court in granting the injunction asked for.

Warrington, Q.C., and Frank Evans, for the plaintiffs, contended that the tender was sufficient, and referred to Greenwood v. Sutcliffe (1), Jones v. Arthur (2), Polglass v. Oliver (3), and Chitty on Contracts, 13th ed. p. 672.

Renshaw, Q.C., and Theodore Ribton, for the defendants, the Life Interests and Reversionary Securities Corporation. It is not disputed that a tender under protest is good, nor that the managing clerk of the solicitor of the corporation had authority to accept a good and lawful tender in cash; but he had no authority to accept a cheque, and the tender was therefore bad. E. Ford, for the defendant Nutting, the purchaser.

Warrington, Q.C., in reply. It is in the ordinary course of business of the character in question here to accept payment by cheque, and a solicitor, therefore, having authority to accept a tender, may accept the cheque of a responsible person. [He referred to Kirton v. Braithwaite. (4)]

KEKEWICH J., after dealing with other matters arising in the case, continued as follows:-Then arises a novel question, namely, whether assuming that a solicitor or any other person is authorized, either expressly or by implication, to receive a legal tender, he is authorized to accept a banker's cheque. Mr. Warrington has been careful to limit the extent of the (1) [1892] 1 Ch. 1. (2) (1840) 8 Dowl. 442.

(3) (1831) 2 C. & J. 15.
(4) (1836) 1 M. & W. 310.

3.

J.

1896

BLUMBERG

V.

LIFE
INTERESTS, &C.

authority, by saying that the solicitor can do what is ordinarily KEKEWICH
done in the way of business by ordinary persons in transactions
of the kind in question that is to say, he would not be at
liberty to accept a diamond or other pledge, or a mortgage or
other security; but that as mortgage money is generally paid
by cheques, he is at liberty to accept a cheque, though Mr. CORPORATION.
Warrington will not go so far as to say that he would be at
liberty to accept a bill or promissory note. It seems to me that
such an extension of authority by reference to the habits of
mankind would be calculated to work mischief. The acceptance
of a cheque involves passing a judgment on the solvency of the
person who tenders the cheque. That was what was done here.
The managing clerk was prepared to take the plaintiffs' solici-
tor's cheque, because he knew, or thought he knew, that his
cheque was good; but he had no means of satisfying himself
that it was.
If it had turned out that there were no funds
at the bank to meet the cheque, could it have been said that
there was a good tender as against the corporation ? It
seems to me certainly not. A solicitor who has authority to
accept a tender accepts anything short of a tender in cash at
his own risk. No doubt it is usual for solicitors to trust each
other and to accept each other's cheques, and the practice is
desirable because it promotes good feeling and facilitates
business. But I think it would be going much too far to say
that a solicitor has authority to accept a cheque because he has
authority to accept a tender according to the law of the land.
I must therefore hold that there was not in this case any
sufficient tender, and that no injunction ought to be granted.

Solicitors Braham Barnett; H. Stanley-Jones; Surman &
Quekett.

C. C. M. D.

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1

VOL. I. 1897.

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The Court has jurisdiction to restrain an executor who has become bankrupt since the death of the testator from further acting as executor; and, if there is a co-executor willing to continue to act, will not require the appointment of a receiver.

DANIEL ROBERTS, retired draper, by his will dated October 23, 1885, devised and bequeathed his real and personal estate to his wife for life, and after her death the whole to revert to his family, with the exception of 400l. which she was to be at liberty to dispose of as she thought best. And he appointed Daniel Phillips, accountant, and William Bowen, grocer, his executors.

The testator died on August 2, 1891, leaving his widow surviving, and the will was proved by both executors on September 15, 1891. The estate consisted of certain freehold property, mortgages, and a sum of cash deposited at a bank in the names of the executors. By arrangement between the two executors the interest on some of the mortgages was collected by Phillips, and the interest on others by Bowen. The rents of the freehold property were collected by the widow, the tenant for life, herself. Phillips improperly applied to his own use some of the interest collected by him, and failed to account to his coexecutor for the same. Ultimately, on July 8, 1896, he was adjudicated bankrupt on an act of bankruptcy committed in November, 1895, and he had not yet obtained his discharge.

On December 16, 1896, Bowen, his co-executor, issued the writ in this action against Phillips, claiming an injunction to restrain him from acting further as an executor of the will, and from interfering in any way with the estate.

The plaintiff now moved for an injunction to restrain the defendant from receiving or collecting any part of the outstanding personal estate and effects of the testator, and from receiving

J.

1897

or collecting any part of the debts due and owing from or to KEKEWICH the said estate, and also from receiving or collecting any part of the rents of the freehold estate of the testator, and from letting or managing the said estate, or interfering or intermeddling therewith, or with any part of the testator's estate or effects.

The defendant had not appeared to the writ, and the motion was made upon an affidavit of the service of the writ and of the notice of motion.

J. W. Greig, for the plaintiff. The Court has jurisdiction to restrain a bankrupt executor from acting: Utterson v. Mair (1); Gladdon v. Stoneman (2); Rex v. Simpson (3); Williams on Executors, 9th ed. p. 187. It seems that a receiver is usually appointed, but I submit that a receiver is unnecessary here, because there is a co-executor who can and will act alone, when the other is restrained. If the two executors are also trustees-which it would seem they are, having regard to the form of the will-it may be necessary for the plaintiff to take steps to remove the defendant as trustee and to have a new trustee appointed in his place.

KEKEWICH J. I find the jurisdiction is recognised in the current edition of Williams on Executors, and also in Seton's Forms of Judgments. I will grant an injunction in the terms of the notice of motion, until the trial or further order. A receiver is not wanted.

Solicitors: Schultz & Son, for L. C. Thomas, Neath.

BOWEN

บ.

PHILLIPS.

(1) (1793) 2 Ves. 95, 98.

(2) (1808) 1 Madd. 143, n. (3) (1764) 1 W. Bl. 456, 458.

G. I. F. C.

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