페이지 이미지

In re

debtor only, and not a trustee. Soper v. Arnold, ibid. 96, and Tirito Co., ibid. 415, company limited by shares a purchaser of land is not entitled to set aside contract for under Act of 1862, cannot issue shares at a discount so as defect of title, after completion, or, where he has made to render shareholders liable for less than amount fixed as default and the contract has been rescinded and his deposit value of shares by memorandum of association, though conforfeited under the conditions, to recover the deposit on tract under which shares issued has been registered under discovering, some time after, that vendor's title was de- Sect. 25 of Companies Act, 1867. Hugill v. Wilkinson, ibid. fective. In re Jackson and Woodburn's Contract, ibid. 44, 480, time begins to run for purpose of barring a foreclosure the Court can, under Sect. 9 of the Vendor and Purchaser action, on an equitable charge on a contingent reverAct, 1874, determine the validity of a notice by vendor to sionary interest in land, only from time interest falls into rescind his contract for sale. În re Cameron and Wells, possession. Barton v. North Staffordshire Railway Co., ibid. 32, limitations of land in a settlement made on the ibid. 458, one of two executors cannot, under Companies second marriage of a widower, in favour of his children by Clauses Act, 1845, make a valid transfer of railway stock former marriage, are voluntary and void under 27 Eliz., c. 4, or shares registered in the names of both; and where one against mortgage subsequently created by him.

executor sold and transferred such stock, forging the Wheal Buller Consols, 38 Ch. D. 42, acceptance of office signature of the other to the transfer which was registered of director and continuing to act for more than three by Railway Co., on discovery of the forgery more than six months, where articles of association provided that the years after the transfer and refusal by Company to register office should be vacated if the number of shares requisite those then representing the executors, action to compel registo qualify him were not acquired within three months after tration may be maintained, the statute of limitations not beginelection : held not to constitute a contract with company to ing to run until the forgeries were made known to Company take additional shares requisite for qualification, so as to and they refused to treat the forged transfers as nullities. render person who had acted as director liable as con- Stonor v. Fowle, 13 App. Cas. 20, an order which is in reality tributory in winding-up. Mutter v. Eastern and Midlands an order for commitment in respect of past default, and only Railway Company, ibid. 92, Sect. 28 of Companies Clauses in form an anticipatory order in respect of future default, Act, 1863, gives a right to stockholders, &c., not merely to may, on proof of means, be made under Debtors Act, 1869 : peruse and inspect register of debenture stockholders, but for example, order to commit defendant to prison for ten also to take copies, and Court will not refuse to enforce right days, warrant to be suspended if debtor paid monthly inbecause stockholder applying acquired his stock at instance stalments, first payment in 14 days, and no renewed proof and to serve interests of rival company. Hancock v. of means is needful on default in payment of any instalHancock, ibid. 78, where wife became entitled in 1883 to a ment. Victorian Railways Commissioners v. Coultas, ibid. share in her mother's personal estate which, had her mother 222, where a collision was, in consequence of negligence, died prior to the Married Women's Property Act, 1882, impending, and the fright caused thereby resulted in a would have been bound by her husband's covenant, con- nervous shock, or mental injury, damages therefor are too tained in an ante-nuptial settlement, to settle it : held that it remote to be recoverable. Great Western Railway v. Bunch, was still so bound, for that Sect. 19 of M. W. P. Act, 1882, ibid. 31, where a bag was entrusted to a railway porter to be modifies Sect. 5 so as not to deprive persons interested labelled and put into a carriage with passenger, a reasonable under a settlement of any benefit to which they would and proper time before the train's departure, and was not have been entitled had Sect. 5 not been passed. Waite v. forthcoming on departure of the train : held that there was Morland, ibid. 135, wife obtaining decree for judicial evidence of entrusting to porter for present and not for separation is a feme sole only with respect to property future transit; that receiving it was therefore within the acquired, &c., after the decree. Easton v. London Joint scope of his authority, and that there was evidence that loss Stock Bank, ibid. 25, taxing master has discretion, to be was due to negligence and the Company were therefore exercised with jealousy, to allow additional fees to counsel liable. A railway company accepting passenger's luggage on hearing of an appeal from Chancery Division occupying to be carried in a carriage with passenger are liable as commore than one day, though no viva voce evidence adduced

mon carriers, save so far as his interference with their before Court of Appeal, by way of daily allowance or other- exclusive control of it has contributed to its loss. Cooper wise, on ground that original fees have, by miscalculation, v. Cooper, ibid. 88, the capacity of an intending wife (a been fixed too low. Timson v. Wilson, ibid. 72, neither minor) to bind herself by a contract of settlement on marparty to an action in Chancery Division to restrain a riage must be judged by the law of her domicil previous to nuisance, has even prima facie right to trial by jury, but the marriage. Mills v. Armstrong, ibid. 1, where persons application is one to the discretion of the Court under were killed in a maritime collision, both ships being to 0. xxxvi., r. 7 (a). Millar v. Harper, ibid. 11, where de- blame, and actions are brought under Lord Campbell's fendant has, and plaintiff has not, means of knowing facts Act, 9 & 10 Vict., c. 93, by their representatives, the in dispute, he must give discovery before he will be entitled deceased persons are not identified with the ship they were to particulars. In re William Davies, Davies v. Davies, on board, or their representatives precluded from recoveribid. 210, there is no jurisdiction on an originating sum- ing damages by negligence of those navigating such ship, mons under R. S. C., 1883, 0. lv, r. 3, to decide a question and the admiralty rule as to half damages is not applicable arising between legal beneficial devisees under a will, for such to such actions. questions only can be determined thereon as could have We have not dealt with the reports of cases in the . been decided under a judgment for administration of an Probate, Divorce and Admiralty Division, and are conscious estate or execution of a trust. In re West Devon Great that even with this omission the summary is long; yet we Consols Mine, ibid., 51, counsel has authority to consent not to have not endeavoured to do more than extract general appeal , even after a judgment on the merits., Licensed Vic principles

, and of these to select those that are of more tuallers' Newspaper Company v. Bingham, ibid. 139, registra- frequent application. In doing so we have not always tion at Stationers' Hall of the name of a newspaper gives given the full effect of the case, though we believe the part plaintiffs no exclusive right to it and publication, not omitted to be of less importance and to qualify in no way preceded by advertisement to that effect, for three days the statement made. Cases which would necessitate a. with a very small sale is not sufficient to confer a very long statement to adequately represent the scope of title by user and reputation. Selwyn v. Garfit, ibid. 273, the doctrine which they enunciate, have for that reason proviso relieving purchaser under a power of sale, in a been omitted or separable parts only referred to. We mortgage deed, from inquiring as to regularity of a sale, need hardly say to anyone, that the summary is not indoes not protect a purchaser who knows of an irregularity tended as a substitute, even of the cases cited, for the which cannot have been waived by the mortgagor. Ellington reports; for, in the words of Coke, 1 Inst. 3056, "It is ever v. Clark, Bunnett & Co., ibid. 332, when oral evidence good to rely on the book at large; for many times comtaken in Court below has to be considered on appeal, ap- pendia sunt dispendia." Yet, taken with these qualificapellant must apply to one of the judges of Court of Appeal tions, we trust the statement will serve to indicate to the through his clerk, to ask judge to send copy of his notes to reader not merely the need of present reformation of the Court of Appeal, and if this is not done the appeal will be “masses of accumulated lore which the reports present to ordered to stand over at appellant's expense. Court of him, the aliarum superalias acervatarum legum cumuli," Appeal will not allow shorthand note of evidence taken by but also as a guide and reminder in the practical conduct clerk of one of solicitors to be referred to. In re Almada

of legal affairs,


their freeholds any more than the Englishman or Scot, whose WELSH GRIEVANCES.

estates in Wales have been bought and improved by money, BY SIR THEODORE MARTIN, K.C.B.

which he could have laid out elsewhere with more profit to himself, and he will turn a very deaf ear indeed to the new

doctrines of spoliation, however disguised these may be When we are told, as we so often are, that gallant little under claptrap pbrases about the restoration of the rights Wales has had her opinions slighted, and her interests of that mysterious unit, “the people.” He is one of the neglected, and that an organization on the model of the “people” himnself; but you will never persuade him of the Irish Land League, and a separate party in the House of advantage of having his property taken from him, with no Commons, are necessary to red:ess her grievances, it would assurance of any compensation to come to him, as one of be satisfactory to have these grievances distinctly formulated, the people, from the confiscation of the property of all the so that plain folks might judge what foundation there is for other land owners in the Principality. The men of Wales the complaint. Dolosus versatur in gencralibus—a saw, are a far way off at present from “ the religion of humanity," which in these days of loose writing and frothy speech one and they are little likely to surrender the fruits of their is constantly reminded-is peculiarly true here. Those who, industry or self denial to the community, which they see like myself, live much in Wales, and have no feeling other by every-day experience contains a very large contingent of than a kindly one for the people, are much perplexed to people who are neither industrious nor self-denying. Their know under what disadvantage, due to extraneous causes, wives and children, not to speak of themselves, have the the Welsh labour, which is not equally borne by other parts first claim upon their consideration. They will not there. of the United Kingdom. They have a better climate and a fore be misled by doctrines which they see must end, if kindlier soil than Scotland. Their mutton and their beeves

logically carried out, in ruin to themselves, and also in a are as good, and they are nearer the markets where the social chaos. best prices are to be had. Adverse seasons and low prices Again, take the case of Welsh tenant farmers. They have have certainly told less upon them than upon the farmers of not to complain, like the Irish, that permanent improveEngland, who depend more than the Welsh do upon cereal ments are made by them upon the land, for which no products. They are now well supplied with railways, which, allowance is made by the owner. Are their rents too high? besides giving a free outlet to their produce, bring a large Why are they so? If they are, who is to blame? They contingent of visitors every summer and autumn, who help are under no compulsion to take their farms for more than to swell the local capital. Their flannel and other wool they are worth. “Surely they can protect themselves, as manufactories thrive. Their coal and iron mines have been their fathers did, by offering only so much rent as they can very largely developed. Their slate quarries employ large afford to pay, and at the same time make a living for numbers of the population. Rents generally, until the last themselves, He is a lucky landlord who, in the best of few bad years, were regarded as moderate; and it is ’n- times, can obtain a return of three per cent. for the money doubtedly true that landlords have met the fall in prices by invested in Welsh property. With the reductions he has equitable deductions. The roads have been well looked had to allow of late years, two and a-half, or even two per after, and the rates have not been squandered either in cent., is nearer the figure ; in my own case it is even less. jobbing or extravagance. Tithes are nothing more than an Would the tenant be better off, if the “people,” that is to element of rent; and where they fall to be paid by the say, “the State,” were his landlord ? Assuredly not, for tenant, they have always been considered in fixing the what Chancellor of the Exchequer would dream of letting residue of the rent to be received by the landlord. The the land of the State upon easier terms, or would pay same voting power for the election of members, either of attention to demands for reduction, when a bad year came? Parliament or of the coming Local Councils, exists in Wales Private landlords, in their own interests, must act upon the as in England ; and no one will say that the voice of the doctrine of “live and let live." But the millennium will people is less potential there than in other parts of the come before a State official will abate one iota of what the kingdom.

tenant has contracted to give him. What, then, are the special grievances which demand But, say the theorists, give the farmers facilities for beextraordinary remedies? What institution requires to be coming owners of their farms. Will this benefit either the modified or abolished? What remedy to be applied, which individual or the State? Does not the history of the last is not, equally required elsewhere, or which the British Par- century in Wales furnish the conclusive answer? What has liament will not adopt upon good cause shown?

become of the countless small freehold farms that used to Is it “ Wales for the Welsh” that is wanted ? What would exist? And why are they now so rare ?

The simple the denizens of the Principality say, if that cry were met by reason is, that their owners could not make a living out of a cry of “ England for the English,” and the Welsh were to them—they were too small to maintain a man and his be forbidden to throw off upon the rest of the kingdom, family, and so money had to be borrowed to enable their over-populated already though it be, those of their sons and owners to stock and work them. Once a loan was condaughters who find there is no room at home to make a tracted, the borrowers' case became hopeless. The interest, living, or to rise in the world, and who have the enterprise which as a rule they could never meet, rolled up, till a fresh to seek a larger field for their energies elsewhere? Wales mortgage became inevitable; and so things went on till the for the Welsh! Are all the benefits to be ignored, which mortgages and arrears of interest were often in excess of the have been conferred upon Wales by the capital of English- entire value of the property. It was then sold by the mortgagee, men or Scotchmen, who have bought the lands that and came into the hands of men who, by adding farm to Welshmen were unable to keep, built the railways which farm, and spending capital on their improvement, introduced have multiplied the resources of the country, sunk the a much wholesomer condition of things than had previously coal and iron mines, opened the slate quarries, and turned existed. The farms thrown together were of a size that exhausted or waste lands by their money, their intelligence could be worked with profit. The tenant's capital was free and their energy, into productive farms; who have improved to provide the proper means for working it, and his rent the breeds of the cattle and the sheep, and beautified and was only a small percentage upon the market value of the enriched the scenery, and ameliorated the climate by land. If now the tenant had to buy his farm, he, as a rule, planting timber widely, where all was barrenness before? If

has not the money to pay for it, neither could he find it by This is the meaning of " Wales for the Welsh ”—and, if loan upon such easy terms; and, bad season or good season, much of what is wonten in the vernacular press have any the lender would insist upon the stipulated interest, and purpose or meaning, this is what is really meant-then let would be deaf to any of those appeals for reduction to which the demand be stated openly and plainly, and the country the present race of landlords neither is nor can afford to and Parliament will know how to deal with it.

be deaf. What, for example, would "the State" or the No men stickle more stoutly than Welshmen for their money-lender say to a tenant who asked for abatements, right to the property which they have either inherited or as landlords, to my own knowledge, are now sometimes purchased. Some of their popular speakers and journalists asked, because the tenant's family has grown so large that have been lately preaching, with more than Irish vehemence, he cannot make two ends meet, where he used to do so that the land does not of right belong to those whom we are with ease when it was of moderate proportions? Clearly, in the habit of calling its owners. But let the small Welsh the fault in such a case is not in the rent, but in the too freeholders see that, if this be true, they have no right to prolific qualities of the tenant's wife. Yet I have known a

[ocr errors]


kind-hearted landlord lower his rent on the strength of such employment where only English is spoken; while the whole an appeal. What would the State or the money-lender have country suffers from so many of its inhabitants being cut off said to it?

from the knowledge of the best English litera'ure, and from The grievance of the existing State Church in Wales, is the interchange of opinion with residents or strangers, who surely no greater than the grievance of a State Church in have no inducement to learn a language so difficult as the other parts of Great Britain. Nonconformists—and non- Welsh, and without a literature to compensate the exertion. conformity in Wales is of the most varied shades-are There is some danger that the Eisteddfodds, now so neither persecuted nor looked down upon. They are free much in vogue, at which the Welsh language and scanty to follow their own forms of worship; and if, unhappily, literature are so greatly glorified, may do harm, by making strong language is sometimes used by churchmen and dis- Welshmen think that they can do very well without making senters in speaking of each other, this only shows, as is themselves familiar with English. The tendency is seen in elsewhere shown throughout Christendom, how little the the demand for Welsh judges and Welsh magistrates, and men "who profess and call themselves Christians ” are pene. in short for everything Welsh, landowners included ; as if trated by the spirit of the author of their common faith, this were the highest triumph of civilization to which the and how little disposed they are to hold his essential doc- Cymri could aspire. trines in the “unity of spirit and bond of peace Better far would it be to urge upon the Welsh communifor which we Churchmen, at least, habitually pray. ties the advantage of being an integral part of the greatest It is hard to understand how a Church can be a Empire the world has seen. My own countrymen of Scotgrievance, whose ministers

not dependent, as land have a passionate devotion to the “land of the mounso many dissenting ministers are, for mere subsistence tain and the flood ;” and the most persuasive cosmopolitan upon the people whom it is their duty to instruct, philosopher would try in vain to "untie the filial band, and, if need be, to reprove. How can a man, whose very that knits them to the rugged strand” of their native soil. bread depends upon the favour of his congregation, speak But this devotion does not prevent them from carrying of any prevailing vice, say, intemperance and unchastity, their gifts of body and of mind to regions where they may when he knows that to do so will rob him of the contri- help in their degree to maintain the greatness of the empire, butions of many of their number, and make them seek the to which they are proud to belong. With many of these tabernacle of some one who will take care not to denounce it is the animating hope of their lives to come back, and die their “cunning bosom sins” with the same severity ? A within sight of their native heather and within hearing of State Church is surely a boon to a nation, if for no other their native stream. But these are just the men to turn reason than that its clergy may speak without fear or with a smile from the dreamers who talk of “Scotland for favour, not measuring their words to humour the prejudices, Scotchmen," and rave about the loss of nationality and inor conciliate the support, of their parishioners. This only dependence as a consequence of the Act of Union. Let men can do whose income is assured to them. The evil is each country retain what is good of its national charac--for where in any human institution is there unmixed good ? teristics ; but let it emancipate itself from the pettiness of --that the Church has its drones, who take their hire without provincialism, and feel how great is the privilege to form giving its equivalent in the faithful discharge of their paro- one of the component members of a mighty nation, to defer chial duties. Wales naturally has its share of these, and they to whose will, as expressed through an imperial Parliament, are little fitted to make head against the more earnest and can never be to its disadvantage. more eloquent men who are the mainstay of dissent. Such

THEODORE MARTIN. false shepherds the Church must, in its own interests, find the means of deposing; and churchmen will be as eager as dissenters to effect reforms of this nature. But, there COUNTY COURT LEGISLATION. can be no doubt that the agitators for disestablishment care nothing for internal reforms: they want to lay hands

B» FRANCIS K. MUNTON. upon the churches and their endowments, heedless of the fact that these endowments have been given for the special service of the established Church, and in justice can no Ar the recent Newcastle Law Congress, after considermore be alienated from the Church than the endowments able debate, a very comprehensive resolution was adopted, for a College can be diverted to any other institution. The to the effect that the large transfer of High Court work dissenters, I know, are very wary in pushing the dises- makes it expedient to attach the County Courts to the tablishment question as far as disendowment; but, if Supreme Court; that the increased duties of the judges they find they have the power to effect the one, they will should be followed by increased remuneration; that to not hesitate to effect the other also.

lighten routine work, the summary process under High Then comes the question, Which of the dissenting bodies Court Order 14 should be extended to County Court dein a parish is to have the parish church-the Noncon- fault summonses over £ 10; and that County Court judges formists, the Congregationalists, the Baptists, the Anabap- should be relieved of the trial of ordinary cases under forty tists, the Primitive Methodists, the Calvinistic Methodists, shillings, to admit of their giving adequate attention to really or which of the other bodies that has set up its own peculiar serious business. It cannot be denied that these proposals standard of doctrine or of worship? The Church numbers are of a sweeping character, and it seems desirable to conwithin its body infinitely more than any of these dissenting sider shortly the justification for pressing their acceptance bodies. Why then should it be disturbed, or despoiled of its on the authorities. The name “County Court” was property, in order that it should be squabbled over and wrongly given at the outset, inasmuch as the 1846 Act fought for by each of the numerous bodies who claim to be was only a consolidation of the law for the “more speedy the only true exponents of what Christ came to teach? If, recovery of small debts and demands."

Had the proper instead of preaching disestablishment, their ministers would name of “Small Debts Court” been retained, the anomaly devote themselves to preaching down vice, and inculcating of heaping up its jurisdiction would have long since been Christian conduct and Christian forbearance, Wales would manifest. The elastic title of County Court, one quite as be a much happier country, and its people more well-to-do comprehensive as the County Assize, caused it to be than they can ever be while rancour and animosity are treated, from a very early stage, as a “Supreme Court fostered by the fiery political sermons which are known to safety valve,” capable of performing any amount of work, constitute a prominent attraction of the chapels.

inferior or superior; nobody making any serious effort to The difference of language is unquestionably a barrier to modify its machinery or to increase the emoluments and the perfect fusion of the Welsh race with the other races of consequent standard of ability of the judges. It is mere the kingdom. No one would wish to diminish the Welsh- accident that some of the Bench have demonstrated their man's love for his native country, or his delight in his native exceptional fitness for superior work. It would be invispeech, which is obviously in harmony with his imaginative dious to mention names, but more than one judge has and excitable temperament.

But it would be better for seen his decisions, after a reversal in the Divisional Court, them, if this enthusiasm did not blind them to the advan- restored by the Court of Appeal, and even in the House of tages of being able to read and speak English with ease. Lords. The original small debt character of the Court failed, For want of the ability 10 do s, their sons and their of course, to attract the main body of solicitors, and even daughters are heavily handicapped when they have to seek when substantial business was added, the admixture of the

rous cases

old trifling element caused the Court to be avoided; and remitted actions, the original jurisdiction in tort has been many practitioners think that nothing but a complete change practically extended from £10 to £20, and there is also will root out this antipathy; and, as the Legislature seems increased ejectment and other new work. The result must determined to gradually send High Court work to the so- be, unless some new provision is made, that the Metropocalled inferior Court, it will be better to annex the Court litan and large central County Courts will be flooded with to the High Court, as far as possible assimilating its pro- business and unable to get through their work, which must cedure, so as once and for all to pull it out of the

ruck into fall into arrear. Such an increase of work in relief of the which it has fallen, and induce the solicitors generally to High Court surely suggests additional remuneration to the take to it. It is hardly possible to select a better example present County Court judges, to say nothing of its being of the tinkering way in which we legislate than the County necessary to attract capable men to fill the posts. The Court Acts afford. Instead of consulting a committee increased salary of £2,000, unanimously recommended by composed of, say, a few judges, registrars, barristers and the Committee of 1878, in regard to populous districts (as solicitors actually engaged in the work, alterations of law proposed in Mr. Norwood's last Bill), would involve an and practice are left to mere accident. The legislators annual expenditure of less than ten thousand pounds. In engaged in the "amendments ”—however eminent some of considering this it has to be borne in mind, that these large them admittedly are in other spheres-have little or no Courts realize a profit on fees received-placing them in personal knowledge of the every-day procedure. The quite another category to the less important Circuits, some 1888 Act is one of the many instances in modern legisla- of which, by their paucity of business, are worked at a loss. tion in which both Houses of Parliament and the Govern- The resolution to apply the summary procedure of the ment have knowingly, so to speak, permitted a wrong. High Court to County Court “default” plaints (which are This was hardly concealed by the Lord-Chancellor when

always preceded by plaintiff's oath) seems not only reasonhe very reluctantly agreed to the amendments of the House able but essential, to check delay and needless clogging of of Commons. The original Bill, which has now become an the Court lists with sham“ defended” cases. Whether this Act with divers amendments, was prepared at least three summary procedure can be applied by “Rules and Orders," Parliaments ago by the Treasury Superintendent of County or only by express enactment, seems to be a matter of some Courts, as a simple consolidation. It was then accom- doubt. The question of dealing compulsorily with depanied by an amendment Bill, providing for the extension mands under 40s, is a most important one, for it must be of jurisdiction and other matters necessarily required to borne in mind that the litigants interested in these numemake it workable, the whole to be engrafted into the Con

are entitled to primary consideration, the solidation Bill when its acceptance should be secured. Courts being originally established to adjudicate on such Two preceding occupants of the woolsack failed in passing claims. Whether it would be right to remit them to reeither, and the present Lord-Chancellor determined to gistrars or to some newly-constituted official is open to conintroduce the Consolidation Bill alone. Unhappily he sideration. In the larger Courts, where the registrar does tacked on about half-a-dozen little amendments which

not carry on any private practice, their judgmenis would be technically took away its true original character, although respected; but in smaller places difficulties might arise, and its title of a Consolidation Act was retained when brought the balance of opinion seems to be that an independent before the House of Lords. The House of Commons officer should be nominated for the purpose, especially as at once detected this, and some zealous law reformers the increased work will necessarily involve some extra resolved to introduce further amendments aiming at ex. machinery, if the business is to be kept under at all. It tension of jurisdiction, come what may, with provisions is well known that on some Circuits efforts have already for stricter performance of duties by certain officials; been made to classify business, by setting aside days for no regard being paid to the insufficiency of the machinery small cases; but this has been found impossible in other to bear additional work. The Bill was relegated by the places, the work being

too large to admit of subdivision House of Commons to the “Grand Committee," where the where the whole of it has to be performed by one judge. Attorney-General, having failed in enforcing a technical

On the whole, the state of things demands serious consideobjection to these substantial amendments, as not being ration; and it is rumoured that the Law Society intend to within the scope of a Consolidation Act, boldly declared apply to Parliament during the winter session to pass a that the Government would assent to none of the proposed single clause, postponing the operation of the 1888 Act till additions, even if it prevented the passing of the Bill. Mr.

new arrangements for working it are perfected. R. T. Reid, nothing daunted, however, moved a clause

FRANCIS K. MUNTON. giving plaintiffs the option of commencing any Actions on Contract in the County Court up to £150 instead of £50, which was practically an intermediate compromise of the proposal in Mr. Norwood's Bill of 1878 and Lord Cairns's

THE ATTORNMENT CLAUSE IN A Bill in 1880—the former suggesting the limit at £100, and the latter £200. The Grand Committee seemed strongly

MORTGAGE. in favour of Mr. Reid's clause, and, in spite of the AttorneyGeneral's vigorous resistance, it was only rejected by the narrow majority of three. This opened the eyes of the The question whether the usual attornment clause conGovernment, and apparently they felt themselves compelled tained in a mortgage, whereby a power of distress is reserved to treat with their opponents; leading to their ultimately to the mortgagee, as security for payment of interest in assenting to a clause, moved by Mr. H. H. Fowler, giving arrears, falls within the provisions of the Bills of Sale Acts, the High Court power to refer any ordinary action on may now, we think, he considered as finally settled by the contract up to £100 to the County Court. In thus giving case of re Willis, Ex parte Kennedy, which is reported in the way, the Attorney-General did not apparently realise that October number of the Law Reports. The case camé a far larger increase of business to the County Courts in before the Court of Appeal on an appeal by the Baroness the metropolis and larger towns would arise under this Willoughby D’Eresby against an order of Cave (J.) that movement than Mr. Reid's rejected clause. Past experience she should pay to the trustee in the bankruptcy of F. W. shows that defendants, and the High Court judges too, are only Willis the sum of £1,715 175., which she had realised by too anxious to refer to the County Court every High Court means of a distress which she had levied upon premises claim up to the statutory limit; in some instances indeed occupied by the bankrupt, by virtue of an attornment the High Court referred cases which they had no power to clause contained in a mortgage deed executed by him. refer, nor the judges of County Courts any power to try, Ву a deed, dated January 28, 1884, the bankrupt, in and which the latter frequently declined to try. The old consideration of £20,000 advanced to him by the Baroness, Acts limited such references to Courts where the action itself "might have been commenced” if brought in the

RYDE & THOMAS' LOCAL GOVERNMENT ACT. County Court; but the new Act has a sweeping clause

Just published. In One Vol., 8vo, 768 pp., price 245. cloth.

THE LOCAL GOVERNMENT ACT, THE COUNTY ELECTORS giving power to refer to any Court “convenient thereto.ACT, 1888, THE MUNICIPAL CORPORATIONS ACT, 1882, with This work may possibly demand a new Metropolitan Court,

full Explanatory Notes and an Introduction; An Appendix containing the

Acts incorporated therewith, and a copious Index. By WALTER C. RYDE, say, the old disused Lincoln's Inn Court, to be presided over M.A., of the Inner Temple, and E. Lewis Thomas, M.A., LL.M., of Lincoln's

Ion and the Midland Círcuit, Barristers-at-Law. London: BUTTERWORTHS, in rotation by certain judges. Besides these extended

7, Fleet Street, Her Majesty's Law Publishers,

[A dut.

devised the premises known as Willis's Rooms, and the

payment of the interest, the mortgagor attorned tenant with goodwill carried on upon the same, together with all fixtures the mortgagee, and the mortgagee had a power of re-entry and fittings, until the Baroness, by way of mortgage for the for default in payment.

Default was made, and the unexpired residues of the terms of years granted respec- mortgagee commenced an action for the recovery of the tively by two indentures of lease, to secure the repayment premises, and applied for judgment under 0. 14. Upon the of the sum of £20,000 then advanced by her to him, with hearing of the summons the defendant objected that the interest at £5 per cent. per annum.

attornment clause was void under the Bills of Sale Acts, so The mortgage deed contained all usual clauses, and also that no tenancy had in fact been created. The Court, provided that “the said F. Willis doth hereby attorn and however, held that the clause was not rendered void become tenant, from quarter to quarter, to the said by those Acts. It was pointed out by Cave (J.) that the Baroness, in respect of the said premises, at a yearly rent actual decision in Hall v. Comfort has no bearing on the of £2,000, by equal quarterly payments, the first payment present case ; but it was contended that the reasoning on to be made on the ist day of the month next after any which it was based and the dicta of both Coleridge (C.J.) interest hereby secured shall have become in arrear, but and Manisty (J.) were conclusive in favour of the Baroness. all money received by the Baroness for rent due under the

It was contended in Hall v. Comfort (1), that the attornattornment hereinbefore contained, shall be accepted in

ment clause purported to create a tenancy to which a the first place in or toward satisfaction of the interest then power of distress is incident, and so gave a power to seize

A proviso was added, that the attornment personal chattels, and came within Sect. 3 of Act of 1878; should not make it compulsory on the Baroness to collect (2), that it amounted to a licence to take possession of perthe rent payable thereunder, and that she should not be

sonal chattels as security for a debt, and so came within accountable to a second mortgagee for any rent recovered Sect. 4. Apparently it was also contended (3), that it under such attornment, and also that she might enter came within Sect. 6, but it is difficult to see how that could and determine the tenancy. On October 1, 1885, there be, for no personal chattels had been seized or taken under was due to the Baroness for interest on the mortgage, the distress, and there is nothing in that section to make the £ 1,485 8s. 4d., and on November 7, 1885, Messrs. Wright attornment itself void. The Lord Chief Justice held that and Son, Sheriff's Officers, distrained by order of the the attornment clause was not a bill of sale within Sect. 31 Baroness, for that amount, as for rent due at that date. nor a licence to take possession of personal chattels as The distress realised £1,715 175., of which €. 230 8s. 8d. security for a debt within Sect. 4; because (1) it had not was retained by Messrs. Wright for their costs, and the the character or incidents of a bill of sale properly so balance of £ 1,485 8s. 4d. paid over to the Baroness. called, and because (2) if it were within those sections Willis became bankrupt, and Kennedy, who was appointed every lease would be within the Acts. It is quite evident trustee of his estate, brought this action to have the money that a lease is not within the section, because the rent in a realised by the distress paid over to him, on the ground lease is not reserved or made payable as a mode of providing that the attornment clause was void against him under Sect. for the payment of interest on a debt or advance. Manisty (J.) 6 of the Bills of Sale Act, 1878, because it had not been in Hall v. Comfort, appears to have thought that for a case registered as a bill of sale. It will be noticed that the

to come within Sect. 6, the power to distrain must be exattornment clause in the mortgage by Willis is in the usual pressly given, and must be a special power, not the usual form, so that the case will govern all mortgages containing power of distress incident

to a demise. That this is not so a similar clause.

is shown clearly by Lindley (L.J.) in his judgment; as his The 6th section of the Bills of Sale Act, 1878, provides lordship points out, it is obvious that the draftsman was that every attornment, instrument, or agreement, not being aware of the fact that there are two forms of mortgage a vicarious lease, whereby a power of distress is given, or which are more or less in use. Sometimes a mortgage agreed to be given, by any person to any other person by deed is made without any attornment clause, but it conway of security for any present, future, or contingent debt tains an express power for the mortgagee to enter and disor advance, and whereby any rent is reserved or made pay- train. Such a power of distress is not so beneficial to the able as a mode of provision for the payment of interest on

mortgagee as the power of distress which is by law incisuch debt or advance, or otherwise for the purpose of such dent to an attornment clause. Under the express power, security only, shall be deemed to be a bill of sale within the

the mortgagee can only take the mortgagor's goods ; under meaning of this Act; and any personal chattels which may be

the implied power, he can as a landlord take any goods he seized or taken under such power of distress, provided that finds on the demised premises. The consequence is that exnothing in this section shall extend to any mortgage of any press powers are not so common as they used to be; but estate, or interest in any land, tenement or heredita- Sect. 5 nevertheless includes both kinds. ment which the mortgagee, being in possession, shall have

It may be taken, therefore, to be clearly settled by the demised to the mortgagor, as his tenant, at a fair and reason- Court of Appeal

, in accordance with an opinion of Baggallay able rent! It is evident, and in fact it was admitted at the (L.J.) in Ex parte Jackson (14 Ch. D. 725, 733), that an trial, that if the case fell within the section, and not within attornment clause in a mortgage of land, whereby, by the proviso, the distress became, by virtue of the Acts of

reason of the relation of landlord and tenant thereby 1878 and 1883, unlawful, and the trustee was entitled to

created, a power of distress is given to the mortgagee as the money realised.

security for the payment of interest in arrear, is a bill of It has always been our opinion that the ordinary attorn- sale within Sect. 6 of the Bills of Sale Act, 1878; and that ment clause in a mortgage, reserving a power of distress, the proviso to the section only applies to cases in which was exactly covered by the words of Section 6, and we

the mortgagee, having previously taken possession of the think a careful comparison of the clause in this case with mortgaged premises, has demised them to the mortgagor, the wording of the section will prove this to be so. Willis

and not to a case where the demise is created by the mortcertainly made an attornment whereby a “power of dis

gage deed itself ; and that so far as the decision or the tress" is given, by way of " security for a debt or advance,"

dicta in Hall v. Comfort conflict with this, they must be and whereby rent is reserved " as a mode of providing considered as overruled. for the payment of interest on such debt or advance." Whether the proviso takes the case out of the earlier por- Upwards of 300 Superb Illustrations (some beautifully hand-coloured).

Illustrated Prospectus post free on application. tion of the section is perhaps a more difficult question, be

KENSINGTON : Picturesque and Historical. By W. J. cause the wording of it is a specimen of that remarkable

LOFTIE, B.A., F.S.A., Author of " A History of London," &c. &c. Illustrated grammar for which our statutes are so justly celebrated. by W. LUKER, Jun., from Original Drawings carefully finished on the spot and

Engraved in Paris, 62 55. For the curious a few Proof copies (50 only, signed The case contemplated by it is, we think, where the mortga- and numbered) at Five Guineas, bound in full-morocco, will have painted in

Water Colours on the front, under the gilt edges of the leaves, a couple of gee has actually taken possession of the mortgaged premises

Kensington Views, which, until the leaves are bent back at an angle, are and then made a demise of them to the mortgagor

invisible. FIELD & Tuer, The Leadenhall Press, 50, Leadenhall Street, E.C.

[Adut. tenant at a fair and reasonable rent,” and this is what was actually held by both Lindley and Lopes (L. J.J.) It was

WANTED.-A Reliable Correspondent in every town to strongly contended, on behalf of the Baroness, that the case

send items of Insurance news or particulars of occurrences was governed by the recent decision in Hall v. Comfort, of interest to the insurance world. All matter used will be 18 Q. B. D., II. In that case a mortgage deed contained paid for, and confidence observed as to source of information a clause by which, for the purpose of securing the punctual if desired.-Address the Editor of this paper.-Advi.

as his

« 이전계속 »