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No. 31, NEW SERIES.-Vol. I.
AUGUST 11, 1855.
SOLICITORS & GENERAL LIFE ASSURANCE SOCIETY,
52, CHANCERY LANE, LONDON. SUBSCRIBED CAPITAL, ONE MILLION.
DIRECTORS. CHURCH, JOHN THOMAS, Esq., Bedford-row.
NORRIS, JOHN M., Esq., Moorgate-street-chambers, DONNE, S, EDWARD, Esq., Screatham-hill.
Maorgate-street. FONBLANQUE, J. S. M., Esq., St. John's-wood.
MURRAY, WILLIAM, Esq., London-street. JONES, WILLIAM, Esq., Crosby-square.
TORR, JOHN SMALE, Esq., Bedford-row. LOUGHBOROUGH, THOMAS, Esq., Austin-friars.
WILLAUME, T. B. T., Esq., New Broad-street. MAYNARD, JONAS ALLEYNE, Esq., Temple.
WITHALL, W., Esq., Parliameni-street. MOURILYAN, J. X., Esq., Gray's inn.
WOOLRYCH, EDMUND H., Esq., Teinple. The attention of the Profession is invited to the advantages offered by this Office to Solicitors and their Clients, which will be found to be greater than in most other Life Ofices. ADVANTAGES TO THE ASSURED.
ADVANTAGES TO THE PROFESSION. 1. Four-baths of the Profits are divided triennially amongst the A Commission of 107. per cent. is allowed on the first year's premium, Assure.i.
and 51. per cent. annually afterwards; and, as an additional advantage In some Offices the Assured may not be entitled to a Bonus until to persons introducing business, the Shareholders have by the Deed of the expiration of ten years from the time of effecting the Policy, whilst Settlement given up hali of their Profits for the benefit of such persons in this Office three years is the utmost limis.
as extra Commission. 2. A: the first division of Profits in Vay, 1853, a Reversionary Bonus,
The extra Commission paid in 1853 to persons introducing business averaging 451. per cert, was declared on all Participating Policies. In was as follows:some cases the Bonus exceeded 612. per cent. on the premiums paid.
Ordinary Commission paid.
Extra Commission paid. On reference to the Prospectuses of some of the principal Offices,
£75 16 0
54 12 11 it will be found that the Bonus on their first division was much less,
135 7 3 viz. 291. per cent.
OS 6 6
15 13 3. The next division of Profits will be declared in May, 1856, when all
41 12 2
29 19 Policies effected in 1855 will participate.
139 8 1
100 10 0 In most Offices Assurers do not participate in the Profits until after
G9 14 0
30 5 0 payment of from three to five annual premiums, but in this Once
Board days, Thursdays, at half-past Two o'clock. they may participate on payment of a single premium.
C. J. GILL, Secretary. WANTED, by a Conveyancing Barrister, a CLERK,
In a few days will be published. either a clever youth who can write a good and quick hand, 07 THE LAW relating to BURIALS in ENGLAND and a more
WALES. By THOMAS BAKER, Esq., of the Inner Temple, age, qualifications, and salary expected, A. B., Jurist Office, 2, Chan- Barriste: at Law, of the Burials Act Ofice cery-lane.
W. Maxwell, 82, Bell-yard, Lincoln's-inn. This day is pablished, Vol. I, royal 8vo., price 12. 88., (to be completed This day is published, in 2 thick vols. royal Svo., price 21. 68. cloth,
in 4 vols.), DAVIDSON’S PRECEDENTS in CONVEYANCING. TAYLOR'S (JOHN PITT) LAW OF EVIDENCE.
Second Edition. Embodying all the improvements introduced Second Edition.-PRECEDENTS and FORMS in CONVEY. into that branch of Jurisprudence by the Common-law Procedure ANCING. With an Introduction and Practical Notes. By CHARLES Act of 1834, DAVIDSON and THOMAS COOKE WRIGHT, Esqrs., Barristers
W. Maxwell, 32, Bell-yard, Lincoln's-inn. at Law. W. Maxwell, 32, Bell-yard, Lincoln's-inn.
THE LAW, 1 contains, SMITH'S (JOHN WM.) LAW OF LANDLORD AND TENANT.
besides other Articles, the following:This day is published, in 8vo., price 148. cloth,
A Sketch of the History of our Law Merchant.
The May Examination Papers for the Degree of Barrister at Law. THE LAW OF LANDLORD and TENANT : being, a Course of Lectures delivered by the late JOHN WILLIAM
A Summary of Lord Brougham's Career, Political and Literary.
London : Butterworths, 7, Fleet-street, her Majesty's Law Publishers. SMITH, Esq., Author of " A Selection of Leading Cases," &c. With Notes and Addicions, by FREDERIC PHILIP NAUDE, Esq., Bar
Just published, demy 8vo.. price 3s. 6d., rister at Lax.
With this long commentary, suggested by the peculiar features of THE LAW OF NATURE and NATIONS as AFFECTED this volume, but of general application, we close it with a hearty com
by DIVINE LAW. By LEONE LEVI, Esq., F.S. A., F.S.S., &c. mendation of its contents to the perusal of all students and of all practi
London: W. & F. G. Cash, 5, Bishopsgate-street Without. tiorers who do not feel themselves to possess a suficient mastery of
JARMAN ON WILLS. the principles of the Law of Landlord and Tenant, and of the broad outlines of its practice."-Law Times:
Just published, in 2 vols. royal 8vo., price 31. 3s. cloth boards, " The volume before us will be found fully to sustain the great re- A
TREATISE on WILLS. By THOMAS JARMAN, putation of its deceased author; and as regards the notes and references
Esq. The Second Edition. By E. P. WOLSTENHOLME, contained in it, which have been respectively prepared and selected
M. A., and S. VINCENT, B. A., of Lincoln's-inn and the Inner with much care and discernment, to confer very considerable credit on
Temple, Barristers at Law. its learned editor."-Law Magazine.
H. Sweet, 3, Chancery-lane, Fleet-street.
Just published, a New Edition, being the Fourth, of
CIPLES of the LAW of REAL PROPERTY; intended as a Abridged, and adapted to the existing State of the Law. By : First book for the use of Students in Conveyancing. By JOSHUA SAMUEL WARREN, of the Inner Teinple, Esq., D. C. L., Recorder
WILLIAMS, Esq., of Lincoln's.inn, Barrister at Law. In 1 vol. Svo., of Hull, and one of her Majesty's Counsel.
price 183. cloth boards. " Mr. Warren's Abridgment of Blackstone, with the corrected and
H. Sweet, 3, Chancery-lane, Fleet-street. additional matter rendered necessary by the changes in the law since the great commentator wrote, more especially the extensive alterations
FINLASON'S CHARITABLE TRUSTS ACT. since the Reform Bill, is a raluable book."--Spectator.
THE ACT, 16 & 17 Vict. c. 137) for the BETTER RE"This work, modestly called ' a systematie abridgment,' partakes far
With copious Notes, more of the character of a deeply-considered original work, into which and an Introductory Essay on the Jurisdictio: exercised over them by is incorporated the very essence of all that remains in force as expounded the Court of Chancery; with all the decided Cases; and an Appendix, by Blackstone."-Legal Observer.
containing Precedents of Schemes, &c. By W. F. FINLASON, Esq., William Maxwell, 32, Bell-yard, Lincoln's-inn; William Blackwood Barrister at Law. In 12mo., price Cs. cloth, & Sons, Edinburgh; and Hodges & Smith, Dublin.
Stevens & Norton, 26, Bell-yard, Lincoln's-inn. No. 31, Vol. I., New Series.
GAZETTES.-Friday, Aug. 3.
Nathaniel Nicholl, Holborn-bridge, baker, Aug. 15 at 11, BANKRUPTS.
London, ch. ass.-Joseph Douglas, Sumper-terrace, Bromp
ton, apothecary, Aug. 20 at half-past 12, London, aud. ac.SAMUEL GAWAN, Kent-street, Southwark, victualler, Aug. 11 at half.past 12, and Sept. 12 at 1, London:
Of Henry Oppenheim, Ramsgate, ship chandler, Aug. 20 at iz,
Essex, Ass. Graham ; Sol. Crafter, 168, Blackfriars-road. ---Pet. f. blacksmith, Aug. 20 at half-past 2, London, aud. ac.-Francis
Butter, Berkeley-street, Clerkenwell, and High-street, Islingand chapman, Aug. 15 and Sept. 19 at 12, London : Off. Great Marylebone-street, stationer, Aug. 21 at 11, London, Ass. Stansfeld; Sols. Linklaters & Co., 17, Sise-lane, aud. ac. Francis Parry M'Carthy, Beech-street, Barbican, Bucklersbury.-Pet. f. Aug. 2.
metal dealer, Aug. 22 at 2, London, aud. ac. - Christopher R. VOHS SALMON, Brick-lane, Spitalfields, shoe manufac- Bell, Hounslow, coal merchant, Aug. 20 at 1, London, aud. turer, (trading under the style or firm of Salmon & Co.),
-William Waddell, Liverpool, merchant, Aug. 24 at 11, Aug. 10 at 11, and Sept. 12 at half-past 2, London: Off. Liverpool, div.-William Rennie, James Johnson, and Wil.
Ass. Graham ; Sol. Frost, Watling-street.-Pet.f. July 3.
liam Rankin, Liverpool, shipwrights, Aug. 24 at 11, Liverpool, Moor-park-terrace, King's-road, Fulham, builder, Aug. 16 div. joint est. Joseph Brooks, Salford, grocer, Sept. 21 at at 2, and Sept. 18 at 1, London: Off
. Ass. Edwards; Sols. 12, Manchester, div.-Thomas Barnsley, Ashton-under-Lyne, Walters & Son, 36, Basinghall-street. - Pet. f. July 31. HERBERT GEORGE JAMES and JOHN JAMES, burn, brickmaker, Aug. 24 at 12, Manchester, div.
tailor, Sept. 21 at 12, Manchester, div.-Wm. Pickup, BlackLeadenhall-street, dealers and chapmen, Aug. 8 at 1, and Sept. 28 at 11, London: Off. Ass. Nicholson ; Sol. Hewitt, to be allowed, unless Cause be shewn to the contrary on or
CERTIFICATES. 6, Nicholas-lane. -- Pet. f. Aug. l. WILLIAM SCUDDS, Blackheath-park, Blackheath, livery.
before the Day of Meeting. stable keeper, Aug. 11 at half-past 12, and Sept. 14 at 11, Henry Peaty, Bristol, grocer, Sept. 3 at 11, BristolLondon : Off. Ass. Cannan ; Sol. Atkinson, Quality-court, George Bell, Holland-street, North Brixton, tailor, Aug. 24 Chancery-lane. -Pet. f. Aug. 1.
at 12, London.-Robert Todd the elder, Westbourne-parkGEORGE PELL, Welford, Northamptonshire, dealer and villas, Paddington, wine merchant, Aug. 25 at 12, London.
chapman, Aug. 15 and Sept. 14 at i, London: Off. Ass. Benjamin Kent, Norfolk-street, Strand, hotel keeper, Aug. 24 Whitmore ; Sols. Linklaters & Co., 17, Sise-lane, Buck- at 11, London.- Henry Beatley, Ely, Cambridgeshire, iron. lersbury.- Pet. f. Aug. 2.
monger, Aug. 25 at half-past 11, London.--Frederick Tallis, WILLIAM THORNĚ, Queen-street-place, London, and Upper Chadwell-street, Clerkenwell, and Crane-court, Fleet
Connaught-terrace, Edgeware-road, and Barnstaple, Devon- street, printer, Aug. 27 at 2, London.-Thos. Morse, North-
To be granted, unless an Appeal be duly entered. JOSEPH PROFFITT, Oldbury, Worcestershire, grocer, James Wilson, Princes-street, Hanover-square, tailor.
Aug. 17 and Sept. 7 at 11, Birmingham: Off. Ass. Whit- John Buchanan, Moorgate-street, upholsterer. - J. Williams, more; Sol. Reece, Birmingham.--Pet. d. July 28.
St. Asaph, Flintshire, and Llandudno, Carnarvonshire, joiner. JOHN SCOTT, Nottingham, grocer, Aug. 14 and Sept. 4 - Thomas Hewitt, Ormskirk, Lancashire, grocer. Samuel
at 10, Nottingham : Of. Ass. Harris ; Sol. Wells, Not- Oldfield, John Allan, and Edward J. S. Couzens, Hudderstingham.- Pet. d. Aug. 2.
field, cloth merchants.-William Jenkinson, Ecclesfield and JAMES HALL, Nottingbam, dealer and chapman, Aug. 14 Sheffield, paper manufacturer. — Henry Watson, Sheffield, and Sept. 4 at 10, Nottingham: Off. Ass. Harris ; Sols.
common brewer.-Joah Carver and Wm. Carver, Halifax, Smith, Nottingham; Rashworth, Birmingham. — Pet. d. machine makers.—John Bradbury, Sheffield, joiner.-F. W. July 14. WALTER JAMES PALMER, Bristol, cattle dealer, Aug. linendraper.
Holmes, Leeds, wine merchant.--Henry F. Newell, Bradford, 13 and Sept. 11 at 11, Bristol : Of. Ass. Acraman ; Sols.
Henry Spencer, Ross, Herefordshire, linendraper.
TUESDAY, Aug. 7.
22 at half-past 11, London : Off. Ass. Whitmore; Sols. RICHARD HARDEY, Kingston-upon-Hull, dealer and Paffard & Co., Portsea ; Ivimey, 30, Southampton-build
chapman, Aug. 15 and Sept. 12 at 12, Kingston-upon- ings.- Pet. f. Aug. 6. Huil: Off. Ass. Carrick; Sols. Holden & Sons, Hull.Pet. JOHN MINTER, late of Folkestone, but now of Stock d. July 19.
Orchard-crescent, Caledonian-road, Islington, dealer and GEORGE ARMITAGE, JOHN FRANKISH, WILLIAM chapman, Aug. 17 at 11, and Sept. 22 at half-past 12,
FRANKISH, and THOMAS BARKER, Sheffield, rail- London: Off. Ass. Cannan ; Sol. Chidley, 19, Gresham. way carriage manufacturers, Aug. 11 and Sept. 22 at 12, street.- Pet. f. Aug. 7. Sheffield : Off, Ass. Brewin; sol. Unwin, Sheffield.-Pet. JAMES BARNEY, Addle-street, Wood-street, warehouse. d. July 7.
man, Aug. 24 at half.past 11, and Sept. 22 at 11, London : WILLIAM GREGORY, Sheffield, toy manufacturer, Aug. Off. Ass. Cannan; Sol. Reed, 11, Ironmonger-lane. -Pet.f. 11 and Sept. 22 at 12, Sheffield : Off. Ass. Brewin; Sol
Aug. 6. Unwin, Sheffield.-Pet. d. July 21.
THOMAS GARDINER, Paul-street, Finsbury, licensed JOSEPH MEEKE, Sheffield, draper, Aug. 11
victualler, Aug. 17 at 2, and Sept. 15 at half-past 1, Lonat 12, Sheffield : Off. Ass. Brewin; Sol. Unwin, Sheffield. don: Off. Ass. Cannan ; Sols. Wright & Bonner, 15, Lon- Pet. d. July 28.
Aug. 3. BRYAN KIERNAN, Manchester, dealer and chapman, Aug. THOMAS HUTCHINS, Hungerford, Berkshire, dealer and
15 and Sept. 12 at 12, Manchester : Off. Ass. Fraser ; Sols. chapman, Aug. 15 and Sept. 14 at 2, London: Off. Ass. Sale & Co., Manchester. - Pet. f. July 30.
Whitmore; Sols. Bishop & Son, 23, New Bridge-street, JOSEPH TRAVIS, Green-bridge, Cage-mill, and Bridge
Blackfriars.- Pet. f. Aug. 3. end, Newchurch, Lancashire, dealer and chapman, Aug. 17 THOMAS FREER, Leicester, wine merchant, Aug. 21 and and Sept. 21 at 12, Manchester : Off. Ass. Hernaman ; Sept. 11 at 10, Nottingham : Off. Ass. Harris; Sol. Hawker, Sols. Standring, jun., Rochdale ; Hampson, Manchester.
Aug. 6. Pet. f. July 30.
[For continuation of Gazette, see p. 325).
CONTENTS. London Gazettes....
320 Vice-CĐANCELLOR Wood's COURT-(Continued). Leading Article
In re Robinson's Trust.-(Payment out of courtNotes on Recent Statutes
Thornton v. Stokill.-(Trustee and cestui que trust First Report of the County Courts Commission .. 324
Following trust monies--Erecutor's right of re. NAMES OF THE CASES REPORTED.
751 COURT OF CHANCERY.
Ross v. Veal.-(Will - Construction-House and preBy T. EDWARDS, Barrister at Law.
751 Meynell o. Surtees.—(Agreement-Wayleave-Speci.
COURT OF QUEEN's Bench. fic performance - Railway company).......... 737 By G. J.P. Smith and W. B. Brett, Barristers at Law. ROLLS COURT.
Reg. o. Petrie.--(Indictment-Obstruction of highway By G. Y. ROBSON, Barrister at Law. .
-Dedication-Public user-Direction to jury)... 752 Davis r. The Earl of Dysart.-(Production of title Kitson 0. Julian.-(Oficer-Surety bond-Continu
deeds-Tenant for life and remainderman). 743 ance in office-Liability of surety-Recital in conWare o. Cumberlege.-(Morimain-Shares in Grand
dition—Plea shewing appointment for one yearJunction Waterworks). 745 Replication)..
754 VICE-CHANCELLOR STUART's COURT.
Wilson v. Robertson. - (Harbour - Duties - Goods By T. F. MORSE, Barrister at Law.
" imported into" harbour- 48 Geo. 3, c. cio, Perry v. Walker.--(Mortgagor and mortgagee-Lease.
755 holds-Mortgagee in possession, liability of-Cove
Lewis v. Bright.-(Spiritual personTrading connants to repair-Wilful. default of mortgagee
tract - Enforcement of contract -1 & 2 Vict. Forfeiture)
c. 110, 88. 29, 31)
Melville v. De Wolf.+(Seaman-- Action for wages, Lett o. Randall-Lett o. Dormer.-(Will-Construction-Intestacy-Distribution, exclusion of widow
Separation from ship at foreign port by British from — Satisfaction - Annuity not perpetual
consul_788 Vict. c. 112, 88. 59, 60—Dissolution “ Then living"--Remoteness).
.. 758 VICE-CHANCELLOR Wood's Court.
COURT OF Common PLEAS.
By W. PATERSON and W. Mills, Barristers at Law. Phillips . Prichard-Riccard v. Prichard.-(Agree- Melling v. Leak.-(Cestui que trust and trustee-Te. ment by debtor to charge a fund coming to him
nancy at will, Title by adverse possession-3 & 4 Injunction) 750 Will. 4, c. 27, ss. 2, 7)
signed by or on behalf of six-sevenths in number and
value of those creditors whose debts amount to 101. and LONDON, AUGUST 11, 1855.
upwards, touching such trader's liabilities and his release
therefrom, and the distribution, inspection, conduct, The case of Larpent and Others v. Bibby and Others, management, and mode of winding up of his estate, or decided on the 23rd of last month in the House of all or any of such matters, or any matter having reLords, involved several important points upon those ference thereto, shall, subject to the conditions hereinclauses of the Bankrupt-law Consolidation Act, 1849, after mentioned, be as effectual and obligatory in all which relate to arrangements by deed between a trader respects, upon all the creditors who shall not have signed and his creditors. It will be remembered that this such deed or memorandum of arrangement, as if they class of sections was framed for the purpose of bringing bad duly signed the same; and such deed or memosuch arrangements within the operation and scope of the randum, when so signed, shall not be, or be liable to bankrupt laws without the publicity of bankruptcy: be, disturbed or impeached by reason of any prior or they introduced a new principle into the administration subsequent act of bankruptcy: provided always, that of affairs between debtor and creditor, by enabling 8 every creditor shall be accounted a creditor in value in certain proportion of the creditors absolutely to bind respect of such amount only as upon an account fairly others having a joint interest with themselves; and stated, after allowing the value of mortgaged property although it was to be worked out by a machinery well and other such available securities or liens from such understood, and to be subject to analogies well esta- trader, shall appear to be the balance due to him." blished, the system has hitherto been regarded as an ex- By sect. 225 such deed is not to be binding upon periment by no means free from difficulty and danger. any creditor who has not signed it until after the expiIt has been frequently found in practice, that what was ration of three months from the time at which the convenient for the parties did not appear to be sanc- creditor had notice from the trader of his suspension tioned by tlie statute, and that what was clearly allowed of payment and of such deed of arrangement, unless by the statute did not suit the views of any of the par- within such time the trader obtain an order or certifities concerned. We therefore welcome a decision of the cate of the Court that the deed has been duly signed*; highest legal tribunal upon the subject, although, like and no creditor who shall not have had fourteen days’ prior decisions in pari materiâ, it leaves several moot notice of an intended application for the order or certipoints undecided, and as doubtful as ever.
ficate shall be bound by it. The clauses in question range from sect. 224 to sect. 229
By sect. 228 the creditors are to have the same inclusive. The 224th section is as follows:-“Every rights as to set-off, mutual credit, lien, and priority, deed or memorandum of arrangement now or hereafter entered into between such trader* and his creditors, and * The granting of such certificate is a judicial act, and
creditors may attend and put any relevant questions to the See sect. 65, as to persons liable as traders to become debtor. (Ex parte Lawrence, 14 Jur. 144; S. C., 19 L. J., bankrupt, to whom these words “such trader” apply. Bank., 6).
and joint and separate assets are to be distributed in distribution of the estate among the creditors parties to like manner as in bankruptcy.
the deed. : “ But,” his Lordship added, “ if we cannot The chief question which has arisen under these take notice of that, as probably we ought not, the deed sections is, whether the deed, in order to be valid, is void on that account also." must provide for the distribution of the whole of the It may be observed with reference to this part of the trader's property, or whether the six-sevenths are not case, that a deed under the statute binds those who do to exercise à discretion in this respect that shall bind not sign while an ordinary composition deed has a the remaining creditors. After conflicting decisions, binding effect only on those who execute it. In the (Drew v. Collins, 6 Exch. 670; Tetley v. Taylor, i former case, therefore, there are strong reasons for sayEl. & Bl. 521; Phillips v. Surridge, 1 Lownd., M., ing that the distribution should be amongst all the & P. 458), it was decided by the Court of Exche- creditors. quer Chamber that the deed miust provide for the With reference to other points in the case his Lord. distribution of the whole of the trader's estate, as in ship added, “ It is unnecessary to say whether the bankruptcy. (Tetley v. Taylor, 1 El. & Bl. 521, 532; notice of the deed simply, or notice of its having been and see Cooper v. Thornton, íd. 544, and Fisher v. executed by six-sevenths of the creditors, is requisite, Bell, 12 C. B. 363). This question was also raised in or to decide upon the other objections to the plea, the House of Lords, but it became unnecessary to decide which are, however, probably unfounded." it. Parke, B., however, said that there was some difference of opinion among the learned judges with regard We cannot have expressed our meaniog so clearly as to it, “although it was not at all unlikely that on
we intended in our observations on Watts v. Porter, further consideration they might all be of the same opinion."
for a correspondent asks us whether that case may not Upon another question submitted to the judges they be reconciled with Whitworth v. Gaugain by the conwere unanimous, vize that a deed of arrangement be- sideration that notice is necessary to perfect a title to a tween a trader and his creditors, which had been com- chose in action by assignment, which was not done in pleted in all respects, and under which his property Watts v. Porter, while in Whitworth v, Gaugain the had been conveyed before the Bankrupt-law Consoli equitable title of the mortgagee was perfect. The dation Act, 1849, came into operation, (11th October, contention in Whitworth v. Gaugain was between a 1849), was not a deed of arrangement within the mean- mortgagee who had an equitable title and a subsequent ing of the 224th section, nor could it be pleaded as a judgment creditor who had a legal title to whatever his defence to an action brought by a creditor who had not judgment covered, which would prevail over the mortsigned it. That section, it was said, applied only to gagee's equitable title if it covered the mortgaged deeds executed after the act came into force, and property, Lord Cottenham at first thought that the perhaps also to deeds which were then in an inchoate judgment and the mortgagee's title were in conflict; state, as was intimated in Waugh v. Middleton, (8 Esch. and if that had been so, of course the judgment would 352). See also, as to the statute not being retrospective, have prevailed; but that view was ultimately cor, Marsh v. Higgins, (1 Lownd., M., & P. 263). rected, and it was held that the judgment only bound
It was suggested by the learned judges as being the what the debtor had at the time, namely, the equity of true construction, that the word "now" in the section redemption. In Watts v. Porter the contention was applies only to the words “memorandum of arrange between a mortgagee of a chose in action who had not ment,
,” and not to the word “deeds.” But, at all given notice to the trustees, and a subsequent judgment events, it was said not to apply to a deed so far acted creditor who obtained a charging order, and by giving upon that a creditor, after the act came into operation, notice to the trustees acquired a title which would precould not be put on an equal footing with those whó vail over that of the mortgagee, so far as they were inhad signed the deed, if he chose to come in under it; and consistent. The only question was, did the judgment or it did not appear in the case before the House of Lords the charging order bind more than that which belonged that the creditor, against whom the deed was set up, to the debtor at the time, namely, the equity of recould then be placed in a position of equality. The demption. Whitworth v. Gaugain decided that it did deed bore date in 1847, and provided for the pay- not-Watts v. Porter decided that it did; and the two ment of a dividend in March, 1848; the material points cases are, therefore, in conflict. The Court expressly in it were these :-It recited a meeting of the cre stated that they put the same construction on the 13th ditors held in the preceding October, at which it had as on the 14th section of the act. The mistake of the been resolved that a deed of arrangement should be Court of Queen's Bench consisted rather in supposing entered into; and then stated, that in pursuance of that the judgment and charging order had the same such resolution ench of the partners in the debtors' effect that an express charge of the property as uninfirm covenanted that they would carry on business cumbered would have had, than in a misapprehension under the superintendence of certain inspectors ap- of the doctrine of Dearle v. Hall, &c. Lord Campbell's pointed by the creditors. It then provided that the remarks on the impropriety of interpolating the word debtors should proceed to get in their estate and effects, “ honestly” in the act of Parliament are as inconsistent and that the monies should be held by them in trust, in with the doctrine of Whitworth v. Gaugain as they are the first place, to pay the salaries of the clerks and other startling to the moral instincts of common men. The servants; secondly, to defray the expenses connected Court did not deny that the mortgagee obtained a title with the trust; and, thirdly, to pay dividends to cre without giving notice, but said that his title would be ditors who had signed; and there was also a provision postponed to a subsequent title to the same thing perthat those creditors who should subsequently come in fected by notice; all of which was undeniable elementary under the deed should also receive dividends out of the law; but they added, overruling Whitworth v. Gaugain, estate, but so as not to disturb any previous dividends. that the judgment and charging order gave a title to a
Another important question was raised in the case, thing which did not at the time belong to the mortgagor. viz. whether the deed was void as making the estate When the Courts speak of perfecting a title to a chose distributable among, not all the creditors, but those in aetion by giving notice, they merely mean making it only who should execute the deed. The learned judges safe against a subsequent assignee who bargains for the expressed a doubt on this point, Parke, B., stating that same thing. When the statute gives a judgment crethey should clearly have thought it void, except that ditor a charge on the debtor's property, it is generally such a deed is in practice common, and that in all cases thought not to mean property which he has previously of a conveyance for the benefit of creditors it is for the i sold to another.
After the above remarks were written we received to the trustee, and one of which no such notice has the letter which we print below. Our correspondent been given. In the former case the judgment creditor will see that we dissent from his first proposition. The has obtained his charge subject to a mortgage, the priocase he puts of a mortgage to A., who gives no notice, rity of which is fixed and indefeasible. In the latter followed by a judgment and charging order in favour case he takes subject to a mortgage which is liable to of B. duly notified, and that followed by an actual be postponed (by act subsequent) in favour of a new mortgage to C., who takes without notice of A.'s title, chargee using greater diligence than the mortgagee. and gives notice to the trustee, seems to us to present This would clearly be the case in favour of an actual no difficulty. Suppose A.'s mortgage to be for 10001., chargee under the hand of the judgment debtor, and I and C.'s 800l.: in that case C. would stand in the am at a loss to see why it should be otherwise with place of A. to the extent of 8001., and A. would come reference to the statutory chargee; nor can I discover next for the remaining 2001.; 'after which the judg- how the priorities of the parties could possibly be settled ment creditor would come in; and if C's charge were if the third incumbrancer could claim to stand above the larger-say 12001.-then C. would stand in A.'s the first, while the second was postponed to the first, place to the extent of A.'s charge, and as to the re- but not to the third. maining 2001., would come after the judgment ereditor. The real question is not so much one of construction
We repeat that the whole question is, whether the of a statute, as a question of equity applied to the new statute is intended honestly to charge only what be circumstances created by the statute. A statutory longs to the debtor, or, as Lord Campbell prefers to charge being created, is it or is it not according to read it, dishonestly to charge what belongs to another. equity that this new charge should be subject to the
same rules as to diligence and priority as other charges? NOTES ON RECENT STATUTES. Are not the same reasons applicable to both ? and would
it not be most inconvenient to aet upon a new rule? Vict. c. the ecclesiastical courts in suits for defamation is abo- ment creditor from the necessity of giving notice of his lished, and persons in custody for defamation under the charge in order to secure his priority over a subsequent order of any ecclesiastical court are to be discharged; incumbrancer; and if so, he could not in fairness be but such order is not to be made unless the costs in- deprived of a corresponding advantage as against an curred in the suit are paid, or unless the person against
A BARRISTER. whom such costs have been decreed has already suffered imprisonment for one month in consequence of the non- MR. TIDD PRAȚt has written the following letter, payment thereof. 9103 J
dated the 27th July, to the editor of The Times upon The stat. 18 & 19 Vict.c.67, (Bill foc Exchange
and the new statute relating to friendly societies:October next, and provides a summary proceeding by
"Sir,-Through the medium of your columns I which judgment may be obtained on personal service would call the particular attention of the members of of a special writ of summons, unless the defendant pay friendly, societies to some of the provisions of the new into court the sum indorsed on the writ, or shew a Friendly Society Act, 18 & 19 Vict. c. 63, which re. defence on the merits to the satisfaction of a judge.ceived the royal assent on the 23rd inst., and is to come
OD 1999 into operation on the 1st August.
S0 or movie “By the 18 & 19 Vict. c. 63, all the previous acts Correspondence.
2017 otilis: relating to these societies are repealed, except as to sub
1993: sisting societies, although nearly the whole of the secTO THE EDITOR OF "THE JURIST." 1995 fitions are made applicable to such societies. SIR, -I venture to dissent from your article in the Friendly societies in future can only be established
16 Porter. The following reasons seem to me to establish birth of a member's child, or on the death of a member, the correctness of the decision pronounced by the ma- or for the fanéral expenses of the wife or child of a jority of the judges.
member. The stat. 1 & 2 Vict. c. 110, s. 14, empowers a judge “2. For the relief or maintenance of the members, to order that stock standing in the name of a judgment their husbands, wives, children, brothers or sisters, debtor in his own right, or in the name of any person nephews or nieces, in old age, sickness, or widowhood, in trust for him, shall stand charged with the amount or the endowment of members, or nominees of memof the judgment recovered against him; and having bers, at any age. thus provided for the creation of a charge, it goes on to “3. For any purpose which shall be authorised by declare the remedies incident to it, viz. all such re- one of her Majesty's Principal Secretaries of State, or medies as the creditor would have been entitled to if in Scotland by the Lord Advocate, as a purpose to the charge had been made by the debtor in person. which the powers and facilities of the act ought to be The latter of these provisions seems to me to be of extended; and the sum to be assured on any continminor importance; it merely furnishes the means by gency is increased to 2001., but no annuity is to exceed which the benefit of the charge is to be obtained. It is 301. per annum. the former provision which creates the charge itself. “ No money is to be paid for the funeral expenses
Now, when a charging order has been made, a de of a child except upon production of a copy of the facto charge is constituted. Upon what? Upon the entry on the register of deaths; and if such entry shall stock. So says the act. But suppose the judgment not state that the cause of death has been certified by a debtor, being cestui que trust of the stock, has mort- qualified medical practitioner, then a certificate signed gaged it, what does the charge take effect upon ? Still, by a qualified medical practitioner, stating the probable I say, upon the stock, but upon stock which is subject cause of death, shall be required; and the sum payable to a mortgage. It is not merely a charge upon so much for the funeral expenses of a child under five not to stock as might remain after deducting the amount of exceed 61., and of a child between five and ten not to the mortgage. The mortgage might be paid off, and exceed 10. then the charge would clearly affect the whole fund. “ By sect. 16 the trustees of a friendly society may
Thus far, I believe, we shall agree-at least, in sub- purchase, build, hire, or take on lease any building for stance. But then observe the distinction between the the purpose of holding the meetings of the society. two cases, of a mortgage of which notice has been given “ By sect. 24 a remedy is given, by application to