SOLICITORS' JOURNAL OF PLEADING, PRACTICE, AND LAW. Administration-Motion to commit for not filing | Costs-Practice (Turner v. Hyland), 155 County Court jurisdiction-Injunction-Attach- Agreement for sale to person in fiduciary position 373 Bill of sale-Subsequent bill of sale not registered Buying a debt for the purpose of taking bank- Voluntary winding-up-Fraudulent transac tions of managing director-Compulsory order-Solicitor to liquidator a shareholder -Change of solicitor (Re Westminster Association Limited), 413 Winding-up-Creditor- Trustee for deben ture holders - Locus standi (Re AngloFrench Co-operative Society Limited), 413 Winding-up-Judgment creditor-Priority (Re Portsmouth Co-operative Association Limited), 360 Contempt-Discharge from custody-Failure to pay trust money-Preparation of defence to criminal proceedings-Debtors Act 1878 (Re Lewis Greene Fullagar), 283 Costs-General costs-Claim and counter-claim (Cole, Marchant, and Co. v. Firth), 43 Costs of successful plaintiff-Order deprivingPower of divisional court-Appellate Jurisdiction Act 1876 (Myers v. Defries; Siddons v. Lawrence), 26 Distress, the law of (Lake v. Duppa), 287 Injunction to restrain interference with business 210 Judges' Chambers, hours of attendance at, 265 Liability of the seller of a void security, 250 Negotiable instrument - Injunction to restrain 360 Partnership-Reference to arbitrator - Common Pleading-Libel-Post-card-Privileged communi- Practice-Motion Cross-examination Inspection (Allen v. Opera Comedy Company Limited), 373 Payment into court-Contempt-Service of Payments before passing of accounts-Claim for unliquidated damages (Comedy Opera Company v. Gunn; Gilbert v. Comedy Opera Company), 413 Summons to vary chief clerk's certificate on eve of vacation-Motion to set aside summons-Delaying plaintiff - Vacation business (Dicks v. Brooks), 303 Unauthorised appeal (Re A Musical Composition), 43 Receiver-Appointment of plaintiff as-Partner of Receiver pendente lite-Leave to surrender one- Security for costs (Redondo v. Chaytor and Redondo v. Chaytor, 80 Settled estate-Sale out of court-Consent of court to sale-Confirmation-Settled Estates Act 1877, s. 16 (Re Chapman's Settled Estates), 373 THE JOURNAL OF THE LAW AND THE LAWYERS. FROM MAY TO OCTOBER 1879. To Readers and Correspondents. VOLUME LXVII. Be RICHARDS AND COMPANY (LIMITED); Wolverhampton Law Students' Society... United Law Students' Society Students' Queries 10 BANKRUPTCY LAW Company-Winding-up-Sanction Re BANISTER; BROAD v. MUNTON- DEARDS v. GOLDSMITH AND WIFE- Court of Appeal COUNTY COURTS 10 10 Southport County Court..................... 11 315 319 CELLOR. We thought that it was one of the chief objects of the Judicature Acts to prevent one court in Westminster being devoid of business whilst another is overworked. THE control of the Bar by circuit messes is an excellent thing. So is the domestic jurisdiction exercised by the Inns of Court, but it is a pity that it is not given a wider scope than it has at present. Professional misconduct is a term which ought to have a wide interpretation, and should most certainly include conduct in Courts of Justice which is calculated to bring the profession of an advocate into serious disrepute. This jurisdiction at present has apparently no terrors for barristers inclined so to offend. The advocate who is the prisoner's counsel in the Richmond murder is a member of the Bar of Ireland and of England, having been called to the Irish Bar in 1874. He practised for some time as a local barrister at Manchester. The astounding disregard of the elementary rules which govern the conduct of the English Bar, which he has displayed in the course of the_investigation, of course carries its own punishment, but the Inn to which he belongs should search for precedents to justify their interference, and, if possible, the exercise of their power for the good government of the Bar. MR. JUSTICE GROVE, in opening the assizes at Chester on Saturday, said that no doubt frequent assizes conduced to the more expeditious trial of prisoners; but, assuming they were held quarterly, while the number of prisoners was smaller, the difficulty on the part of the judges of naming suitable times became much greater. If the judges gave too long a time to one place, they were debarred from taking part in the administration of justice in London, where they were very much needed, and were kept virtually doing nothing in the country. The business at Ruthin, for instance, was got through in less than a day, but there was not time for the judge to go up to London and return for the next assize, because his stay would be too short to enable him to take a proper part in the administration of justice in the metropolis. On the other hand, the judge might allow a provisional time, with the chances that a good number of prisoners might be committed between the naming of the period for holding the assizes and the time they were really held. The learned judge said that it was a matter which required consideration whether anything could be done to give greater elasticity to the period for holding assizes. LORD MANSFIELD's authority upon the law of libel was invoked by the SOLICITOR-GENERAL in his reply in the Lambri case on Wednesday last, but without avail, for Chief Justice COCKBURN interposed with the remark that the reference was to a dark spot in the career of the learned lord whose statement was relied upon. Lord MANSFIELD was concerned in the trial of more than one celebrated case of libel. Thus we have the trials arising out the writings of JUNIUS, and those of the DEAN of ST. ASAPH, and HORNE TOOKE. In the case of Rex v. Almon, which was the first 16 tried, the question was whether the evidence was sufficient to render the defendant liable as publisher. On behalf of the prosecution a copy of one of the letters of JUNIUS was produced. On the title page the defendant's name appeared as publisher. The purchase had been made at the defendant's shop from a person acting there as his assistant. It was urged for the defence that a man cannot be made a criminal by the act of his servant. Lord MANSFIELD, however, ruled that a sale by the servant was primâ facie evidence of a publication by the master, and a verdict of guilty was found. A motion for a new trial was lodged in the ensuing term This was discharged. "I," observed Lord MANSFIELD, "continue to think that the buying of a pamphlet in the open shop of a professed bookseller and publishers of pamphlets from a person acting in the shop, is primâ facie evidence of a publication by the master himself; but it is liable to be contradicted where the fact will permit, by contrary evidence tending to exculpate the master and to show that he was not privy nor assenting to it." This doctrine was subsequently carried to the extremest limits upon the outbreak of the French Revolution, and an instance is recorded where the Court refused to admit evidence to show that a libel had been inserted in a newspaper when the registered 16 Rota of Registrars in Attendance... 16 The Law and the Lawyers. It will be interesting to observe for what length of time the old superstition about separate divisions of the High Court will be allowed to obstruct the administration of justice. There are at present upwards of forty new trial rules standing for argument in the Queen's Bench, but none in the Common Pleas. A transfer of half these rules from the former division to the latter, we suppose, is technically impossible without an order of the LORD CHANVOL. LXVII.-No. 1883. owner was lying unconscious, and that he had previously given strict crders that the article in question should not be inserted. Such a disgrace to the administration of justice cannot now take place. AN important question to the owners of rights of market was decided by the MASTER of the ROLLS last week, in the case of Elwes v. Payne. The plaintiffs were the owners of an ancient market, for horses, cattle, &c., at Brigg, in Lincolnshire, dating back as far as the time of HENRY III., and enjoyed without interruption ever since. Their market was held every Thursday, but the defendants, who had leased a plot of land in the neighbourhood and erected stalls for stock upon it, proposed to hold a public sale by auction upon their piece of ground every Monday for horses and the same class of animals in respect of which the plaintiffs had their right of market. The plaintiffs moved for an injunction to restrain the defendants from commencing their auctions until the trial and the rights of the parties had been disposed of. Much old law was referred to as to what constituted a disturbance of a market, and the authorities do not seem to be very clear on the point. The MASTER of the ROLLS eventually came to the conclusion that the law on the subject was, that where the rival markets are held on the same day the law presumes damage to the owner of the ancient market, and that an action lies without more. If, however, the rival markets are held on different days, then the onus lies on the owner of the franchise to show that the rival market will cause him actual damage, before there is a cause of action. On the question whether what the defendants propos ed to do amounted to holding a rival market it was urged that all they proposed to do was to sell on their own premises, and not do more than any other shopkeeper. The MASTER of the ROLLS, however, considered that the defendants would clearly be holding a rival market, and he relied on a passage in Mr. Justice BLACKBURN'S judgment in Fearon v. Mitchell (L. Rep. 7 Q. B. 697), a somewhat similiar case in its facts to Elwes v. Payne, except that the sales were there held on the same day as the authorised market. The MASTER of the ROLLS considered, moreover, that there was suffi cient evidence of damage on the interlocutory application to entitle the plaintiffs to sue, and, as he thought on the balance of convenience that he should inflict much less injury by granting the injunction than by allowing the sales to proceed, he made an order restraining the proposed sales until the trial. The THE question whether one tenant in common of a dramatic copyright can give a good licence to represent the piece, the subject of the copyright, so as to bind the other tenant in common, is, so far as we are aware, novel, and was raised for the first time in the case of Powell v. Head, at the Rolls, on Monday last. Two ladies were joint owners of the copyright in a comic opera, and one only had granted a licence to represent the same. The other co-owner brought the above action against the defendant, who had represented the opera without her consent, claiming the penalty fixed by the 3 Will. 4, c. 15, s. 2, of £2 a night for the wrongful representation. According to sect. 1 the "author," or his " "assignee," shall have as his own property the sole right of representation for the period fixed by the Act; and by sect. 2, if any person represent or cause to be represented, without the consent in writing of the owner or other proprietor first had and obtained, any dramatic production protected by the Act, they shall be liable for every such representation to the payment of an amount not less than forty shillings to the author or other proprietor of such production. By sect. 4, authors and persons spoken of in the Act are to extend to any number of persons, and to either sex. plaintiff's contention was that the consent of every "proprietor" was necessary before representation, and, although the defendant endeavoured to meet this by analogy to the old common law doctrines as to joint ownership of chattels, the plaintiff's construction was that adopted by the MASTER of the ROLLS. His Lordship said that, whatever the common law doctrines had been, it was now clearly settled that an owner of a chattel could have a receiver of the chattel appointed, or could restrain any improper dealing in case his co-owners excluded him from possession, or were making use of the chattel in a way contrary to his wishes, and therefore, if it were necessary to decide the case by analogy, the plaintiff ought to succeed. On the construction, however, of the Copyright Act he was clear, having regard to the provisions of sect. 4, that the words "author" or "proprietor" meant "authors and "proprietors," and therefore that any representation, without the previous consent of all the proprietors, was unlawful, and that the wrongdoer was liable to each proprietor for the damages sustained. As the plaintiff was only interested as to a moiety in the copyright, his Lordship fixed the amount of the damages payable to the plaintiff at 20s. a night instead of 403., the least penalty given by the Act to the author or proprietor of the whole. THE Absconding Debtors Act 1870 gave the Bankruptcy Court, for the first time, a very simple and summary way of stopping fraudulent debtors who were about to quit the country. Under sect. 1, if, after a debtor's summons has been granted, it " appears to the court that there is probable reason for believing he is about to go abroad with the fraudulent intention of avoiding payment of the debt for which the summons has been granted," a warrant for arrest may be issued. Here the words "probable reason" are rather vague, but they were stretched beyond all bearing in the recent case of Ex parte Gutierrez, Re Gutierrez, which was an appeal from the decision of Mr. Registrar MURRAY sitting as Chief Judge. It appeared that the debtor was a Spanish subject, carrying on business at Havannah. He came to this country to arrange with his English creditors for a composition, which, however, could not be carried out, owing to Spanish difficulties. He wrote to the summoning creditors, who had been willing to accept the composition, that it had fallen through, and he was about to return home. Notwithstanding this, these creditors issued a debtor's summons against him, and somehow obtained a warrant under the Act for his arrest, and he was arrested when the summons was served. The Registrar had refused his release after hearing these facts, and he came to the Court. The MASTER of the ROLLS made some remarks which, though strong, are amply supported by the evidence. He said that the practice of the Court had been abused by being "intentionally used for an improper purpose contrary to the plain meaning of the Act and the justice of the case." After discharging the order with costs in both courts, and at once releasing the debtor, Lord Justice JAMES added: "I should have thought it impossible, after the way, in which the distinction between an Englishman and a foreigner was so clearly laid down by Lord Justice MELLISH in the case of Ex parte Crispin (L. Rep. 8 Ch. App. 374), that such an order could have been made." Lord Justice BRAMWELL pointed out pretty plainly that there was good ground for an action of false imprisonment. In the case last quoted, it was decided that the presumption of leaving England to defeat and delay creditors "does not apply to a foreigner who is returning to his own country." So that not only did the facts show there was here no "probable reason" whatever to suppose the debtor was going abroad to avoid payment; but the law was, and is, as plain as possible that the Act was wholly inapplicable to a foreigner. The power of imprisoning absconding debtors was formerly confined to judges at chambers, who required strict proof of a fraudulent intention before they acted. It is to be hoped that for the future the same care will be shown by the Court of Bankruptcy. THE Corporation of the City of London are troubled about the position and prospects of their two courts: the Mayor's Court and the City of London Court. The Law and City Courts Committee of the Common Council have been considering the whole of this vexed subject, especially with regard to the effects which the Government County Court Bill may have upon their jurisdiction. At a recent meeting of the Common Council the committee presented a report condemning the whole Bill, and asking leave actually to oppose it and to confer with the Government thereon. With regard to this latter point it seems that the LORD CHANCELLOR had already asked to be furnished with a statement in writing of the views of the Corporation. As to leave to oppose there was the usual conflicting conversation which ended in nothing, and the matter stands adjourned; meanwhile the members are going to study the Bill for themselves, and consider the whole correspondence. But the report of the committee is of some value, founded as it is upon the experience of several solicitors and men of business. They hold that the clauses are not only objectionable in principle, but would in practice produce considerable hardship. They are further of opinion that the County Courts, as at present constituted, are not adapted to the class of business which the Bill proposes to transfer to them. The committee hit the point exactly when they say that the extension of the jurisdiction of the County Courts would be no saving of expense to suitors unless the court fees were considerably reduced. They go on to add that it would deprive suitors of their present rights of having important questions of law and fact decided in the High Court of Justice, and tried before a special jury. As to this point there seems to be needless alarm, for even under the sweeping clauses of the last Bill heavy cases would be kept at Nisi Prius, and special juries untouched. But there is another reason why the Corporation are troubled about the new Bill, besides their general care for the public and Profession. It seems that clause 14 would materially affect the Mayor's Court, and would, according to one speaker, take away from it five-sixths of the jurisdiction it now exercises. This was mentioned as a commercial calamity, but it also touches the pocket of the Corporation. We doubt the effect being so great while the high fees in County Courts are maintained; and certainly for men of business the Mayor's Court is cheap and convenient as a means of debt recovery. But the City can hardly expect to keep everything. They have now got both the Mayor's Court and a County Court of their own, with all their patronage and profit. In an article some months back upon the "Civil Courts of the City," we pointed out a mode of amalgamation. This scheme has, we understand, been discussed and dropped; and no other is proposed. The opposition of the Corporation may, however, do some good if it ends in rendering the new Bill a more reasonable measure of reform than it is at present. |