AND

VOL. XXIV.

LEAVE TO defend unDER ORDER XIII.

UNDER Order XIII. a defendant may apply for (1) dismissal of the plaintiff's application, (2) leave to defend unconditionally, (3) leave to defend on terms, or (4) leave to defend as to part of the claim only. Where one of two or more defendants, jointly liable upon a liquidated demand, does not appear, the plaintiff may mark judgment and issue execution against him for the entire demand, and afterwards proceed against the co-defendants who have appeared: Montgomerie v. Ferris and Brown, 20 L. R. Ir. 282. Although the Court has a discretionary jurisdiction to amend a writ by striking out an unliquidated claim and give judgment under this Order for the balance, still, where a substantial demand is sought to be struck out, the Court will not grant the amendment if the plaintiff refuses to abandon the demand : Smith Barry v. Mulcahy (to be reported in next issue). Judgment will not be allowed to be summarily marked except in the clearest cases. If the Judge is satisfied that there is any defence possible to the defendant, or that he should be allowed to defend, then he should not grant judgment. The defendant may oppose an application for final judgment either by raising a preliminary technical objection-e.g., that the writ is not specially indorsed, or that the claim is not verified-or by satisfying the Judge by affidavit or otherwise (i.e., by other sufficient means) that he has a good defence on the merits, or showing such facts as-although not sufficient to amount to a defence entitle him to defend, or by offering to bring money into Court. The words "unless the defendant, by affidavit or otherwise, satisfy the Court or a Judge " have been thus explained by an English Judge-" On hearing these applications I do not pretend to try the action; all that I require is to see that there is a bona fide defence:" Andrews v. Stewart, W. N., 1876, 7. Where the affidavit fails to do this, leave to mark judgment will be granted unless the defendant offers to bring into Court the amount claimed. The mere allegation of a good defence" is insufficient: Phillips v. Harris, W. N.,

1876, 52. The affidavit of the defendant should state its nature and why he thinks it a substantial one which can be sustained. On being satisfied that there is a defence on the merits, a Judge cannot exercise his discretion in granting or refusing leave to defend, but he may impose terms upon giving leave to defend (r. 6): Shurmur v. Young, 33 S. J. 155. He ought not to impose terms where he is satisfied that there is a really good defence on the merits, but where he is in doubt he ought to impose them. Where the defence suggested is very shadowy, leave should be refused. But a plaintiff has not an absolute right to summary judgment merely because the de

No. 1,217

fendant's affidavit of defence is not completely satisfactory and clearly established; and if the Judge thinks there is a fair and bona fide defence he should not hamper the defendant by requiring him to find money or security.

A plausible defence is sufficient, whether it be technical or not. Thus in an action under the Agricultural Holdings Act, 1883, for the balance of an award for compensation, the defence raised was that that Act required the claim to be enforced in the County Court, whereas it was really only permissive, still the Court granted unconditional leave to defend: Carver v. Buccleugh, 33 Sol. Jour. 286. Where there is no undoubted documentary evidence to put the case beyond doubt on one side or the other, and the testimony is contradictory, and evidence must be gone into-there being a prima facie case on both sides-the Court will not attempt to try the case on a motion for summary judgment, but will let it go on for trial in the ordinary way, especially where the transactions are very complicated. Unconditional leave to defend should then be granted: Saw v. Hakim, 5 Times L. R. 72.

If the defendant alleges fraud-e.g, in the obtaining of a foreign judgment, the fraud being only discovered since the judgment-even though some of his statements are somewhat vague owing to his inability to obtain documents, he will be given unconditional leave to defend Manger and others v. Cash, 5 Times L. R. 271. Several recent cases of importance under this order have arisen in England on Bills of Exchange. Fraud is a good defence as against the holder (Fuller v. Alexander, 47 L. T. N, S. 443; Millard v. Baddeley, W. N. 1884, 96), but it must be fraud in the inception of the bill. Thus where an action was brought on a Bill of Exchange drawn by one M. on and accepted by the defendant, and by M. endorsed to the plaintiff, and the defendant made an affidavit to show that a set-off on the bill as between him and M., the fraud being held to be a mere collateral transaction between them, judgment was granted by the Court of Appeal in England: Edward v. Davis, 4 Times L. R. 385. See also the case of Jones v. Whittaker, 57 L. T. N. S. 216, as to leave to defend as to part of a claim upon payment into Court, where fraud is alleged, and that the plaintiff knew of such fraud. In an action brought by the plaintiff against one defendant, S., as acceptor and against another, Bradley, as drawer and endorser of a dishonoured bill of exchange for £500, of which the plaintiff was the holder for value, leave to sign final judgment against Bradley was granted, and leave to defend was granted to S., the acceptor, on the ground that a material alteration was made in the bill before issue, and that the bill was accepted and delivered

have to pay for the privilege of addressing you here as advocates?

Lord M. Fitzgerald-Ob, you make it in another way. Mr. Taylor-But we stand here on our strict legal rights. Mr. O'Connor said there were two cases of the kind reported in the Irish Law Times last week. Chairman-All I can say is, and I am sure Mr. Taylor will bear me out, that the agent has been allowed to conduct a case here as long as I have been on the bench, and I never knew such a thing as that a solicitor should be employed. No doubt, as Mr. Taylor says, everybody for himself.

Commander Coghlan-I have known cases where an agent conducted them here. It is iniquitons to say that a man cannot come forward and give evidence. Common sense does not rule it that way.

Mr. Taylor-All I can say is, that the Law Adviser says so. Chairman-There is no Law Adviser now. Mr. Taylor-This was a special case submitted by the Law Society to the Law Officers of the Crown. It is quite true that such cases have often been heard here and have not been objected to, but there is an old adage, that the pitcher goes to the well a thousand times and gets broken at last. Chairman-So far as I am concerned I think a person should be allowed to come here, and then let them test it. Mr. Taylor-But unfortunately it is the bench will test it. Commander Coghlan-I do not consider that an agent has a right to ask witnesses questions, but he has a right to appear. Mr. Taylor-He has no right to conduct a case. landlord cannot appear except by himself or his agent, and the word agent means law-agent. The language of the circular is to clear for argument. Lord M. Fitzgerald-I think that is all humbug. Mr. TaylorWell, your worship differs from Mr. Madden and Mr. Atkinson. Mr. O'Connor-It is humbugging Mr. Taylor and myself out of our fees. Mr. Taylor-Out of our rights.

BILLS OF SALE LAW.

A

The aburdities of the Bills of Sale Act, 1882, are admirably exemplified by the decision of the Court of Appeal (Lord Esher, M.R., Fry and Lopes, L.JJ.) in Cochrane v. Entwisle. The bill of sale in question was given in February, 1888, to secure an advance of £50, and after assigning all the chattels specifically described in the schedule, continued, "together with all the tenant-right valuation, goodwill, tillages, and interest of the mortgagor, in and to the farm lands and premises." Manisty, J., had held the bill of sale bad, on the ground that the introduction of these words effecting a mortgage of real property was a substantial variation of the form given in the Bills of Sale Act. This judgment the Court of Appeal upheld. So far as security was given by the bill of sale over the personal chattels specifically described in the schedule, it was clearly in accordance with the prescribed form; did the addition of the security on the chattels real vitiate it? In re Burdett, 20 Q. B. D., decided that a document, being a bill of sale of personal chattels and chattels real, but bad as a bill of sale of the personal chattels under the Bills of Sale Acts, might be divided, and could be good as to the chattels real. In that case the question was whether the bill of sale being bad as to the chattels personalnot on the ground of comprising chattels real-it could be supported as to the chattels real and it was held that it could. Cochrane v. Entwisle involves this absurdity: the bill of sale is good as a mortgage of chattels real, and hut for the addition of the valid security on chattels real it would be a valid bill of sale of chattels personal, but by reason of this, in itself valid, addition the otherwise valid security on chattels personal is invalidated.-Pump Court.

A good legal exercise for all interested in the law of bills of sale would be provided by a comparision of the form in the schedule of the Bills of Sale Act, 1882, with the form of bill of sale which the Court of Appeal in Haslewood v. The Consolidated Company, noted last week

(L. J. N. C. p. 63), held to be "in accordauce" therewith. The statutory form runs that the grantor agrees that he will duly pay to the grantee "the principal sum aforesaid, together with interest the due by annual payments of £ on the day of [or whatever else may be the stipulated times or tirae of payment]." The form in Haslewood's Case runs that the grantor will pay the principal by certain mouthly instalments, the last payable on March 6, 1890, and will, "on the said March 6, 1890, also pay the interest which shall have accrued at the rate aforesaid on the said principal sum, and in case default shall be made in payment of any instalment of the principal sum, the same shall until payment continue to bear interest at the rate aforesaid." Is there "accordance" in these forms or not? The High Court has said No, the Court of Appeal Yes. What will the House of Lords say ?-Law Journal.

SEPARATE PROPERTY OF MARRIED WOMEN.

Any misapprehensiou of the effect of Leake v. Driffield, L. R., 24 Q. B. D., will be corrected by the judgment of the Divisional Court (Grantham and VaughanWilliams, JJ.), in Bonner v. Lyon. The case came before the court on motion for judgment. At the trial before Deuman, J., and a jury at Lewes Assizes, the action (which was brought against Lieut. Lyon and his wife, by plaintiffs, a firm of jewellers, for £144 for goods supplied to Mrs. Lyon) resulted in a verdict for the plaintiffs against Mrs, Lyon, and a finding that she had separate estate. Denman, J., however, left plaintiffs to move for judgment, doubting whether, having regard to Leake v. Driffield (ubi supra), Mrs. Lyou had separate estate within the meaning of the Married Women's Property Act, 1882. The facts were follows: Mrs Lyon married Lieut. Lyon in June, 1888; the following October and November she ordered the jewellery in question from the plaintiffs, under the name of Stanhope, in which name she bad dealt with the plaintiffs previously to her marriage. The evidence also showed that Mrs. Lyon had means of getting money, independently of her husband, as she drove about in a carriage and pair, had valuable jewellery and expensive presents, provided for a cousiderable portion of the expenditure of the household, and had ordered and been supplied with very large quantities of dresses and jewellery from other firms also. Now Palliser v. Gurney, 19 Q. B. D., shows that the existence of some separate estate at the date of the contract by the married woman, must be proved; and Leake v. Driffield (ubi supra), lays down that it is not sufficient to prove the existence of separate estate, with reference to which, and to find which, it would be unreasonable to presume that the married woman's contract was made or intended to be made. In Bonner v. Lyon, Vaughan. Williams, J., considered the effect of section 1, subsection 3, of the Married Women's Property Act, 1882-Every contract entered iuto by a married womau shall be deemed to be a contract entered into by her, with respect to and to bind her separate property, unless the contrary be shown." In his Lordship's opinion those words were not intended to let in evidence of the iutention, in fact, of a married woman: they meant unless the property was of such a nature that such a presumption could not arise.-Pump Court.

REVOCATION OF WILLS BY MARRIAGE.

It is provided by the 18th section of the Wills Act, 1837, that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin under the Statute of Distributions). In the Goods of George Brown Russell, deceased (unte, p. 449), is an illustration both of the rule and the excep'iou. A man devised and bequeathed all his

property, and all property over which he should, at the time of his decease, possess a power of appointment, by will to Miss Smith, and appointed her his executrix. Subsequently be married Miss Smith, and died without re-executing his will. The widow applied for probate. It was held, however, that the will was revoked as far as regards the testator's own property, but that as regards property over which he had exercised his power of appointment, she was entitled to administration with the will annexed. The distinction is a natural one. A man may be presumed to wish that marriage shall. make some difference in his testamentary arrangements, especially if he has been married according to the rites of the Church of England, and endowed his wife with all his wordly goods; but when he has merely a power of appointment over property, which would not form part of his own estate if he did not exercise the power, there is no reason why his marriage should affect his belief as to the way in which he should exercise the power. Before the Wills Act, a will was revoked by the marriage of the testator aud the birth of a child, and the revocation took place in consequence of a rule or principle of law, independently of any question of the intention of the party himself: (Marston v. Roe d. Fox, 8 A. & E. 14). This principle applied also when the child was posthumous: (Israell v. Rodon, 2 Moo. P. C. Rep. 51.) Many will agree with Sir C. Cresswell's judgment, In the Goods of T. Cadywold (30 L. T. Rep. O. S. 370; 1 Sw. & Tr. 34), that "it seems at first sight rather startling to say that a will like the present, executed in contemplation of marriage, and providing for the wife and children of the marriage, should be revoked by such marriage and the birth of a child; but, on the cases cited, there is no doubt that the law so stauds, and I must reject the motion for probate." Those were all cases of wills made under the old law, but the decisions were inevitable, if it were granted that the intention of the testator could not be considered: à fortiori the express provisions of the Act prevented Miss Smith taking Russell's property, though it was her own marriage with the testator which brought about a result which he could not in all probability have intended. In Mette v. Mette (33 L. T. Rep. O. S. 139; 1 Sw. & Tr. 416) it was held that the marriage abroad with a deceased wife's sister did not cause the revocation of a will made since the Wills Act. The testamentary dispositions of the testatrix In the Goods of Charlotte Fenwick (16 L. T. Rep. N. S. 124; 1 P. & D. 319) were somewhat complicated. While married to H. she executed a power of appointment in favour of H., and another power in favour of her son. She subsequently revoked the appointment to H., and was divorced from him. She afterwards married again, and made a new will which did not refer to the old one, or purport to exercise any power. The first will being within the exception to the said 18th section was held not to have been revoked, and probate of the three testamentary documents was granted to the executor named in the first will, there being no mention of an executor in the other documents. The Courts seem to lean to the non-revocation of powers, as, notwithstanding the qualification attached to the exception contained in the said section, a will made in exercise of a power is not revoked, "if the persons taking in default of appointment, though they may in fact be the heirs or statutory next of kin of the donee of the power, do not take in that capacity under the instrument creating the power:" (Theobald on Wills, 3rd edit., p. 32.) "The question is," said Sir C. Cresswell, In the Goods of Sir C. A. Fitzroy (31 L. T. Rep. O. S. 171; 1 Sw. & Tr. 133), "whether the exception in the 18th section of the Wills Act applies, the children, in the event of an intestacy, taking under the settlement, and not under the Statute of Distributions, though they are the same parties that would take, aud take in the same proportions, as if the trust moneys had passed under the statute;" and that learned judge held that the exception did apply. In the Goods of McVicar (20 L. T. Rep. N. S. 1013; 1 P. & D. 671), where the property Was settled in default of appointment upon the "next

of kin" of the donee, Lord Penzance held that the will excercising the power was not revoked by the donee's subsequent marriage, as the words "next of kin " do not import the same class of persons as next of kin under the Statute of Distributions. A testator made his will, but having afterwards married executed a codicil, which made provision for his wife, and revived the will. On the death of his wife, thinking that the codicil was no longer of any use, he destroyed it, and the question was raised as to whether the destruction of the codicil, on which alone the revival of the will depended, left the will inoperative. Sir James Hannen decided that the codicil was destroyed under a miscon ception of the effect of the Act, with no animo revocandi, and accordingly granted probate of the will and codicil: (James v. Shrimpton, 35 L. T. Rep. N. S. 428; 1 P. Div. 431)-Law Times.

INCORPORATED LAW SOCIETY.

The half-yearly general meeting of the Incorporated Law Society was held in the Solicitors' Buildings, Four Courts, on the 16th inst.

Mr. W. BURROUGHS STANLEY (President) occupied the chair.

Amongst those present were

J. F. Harkan, J. W. Killeen, Joseph P. Tyndall, F. S. Harney, William J. Roberts, William S. Hayes, C. Walsh, H. S. Mecredy, M. A.; John R. O'Connell, LL.B.; W. J. Grove White, C. Friery, W. Fay, junr.; R. K. Clay, J. A. Barry, Thomas Falls, C. A. Stanuell, M.A.; William H. Dunne. F. C. E. Bland, William Sterne, Joseph Galloway, M.A.; William Carey, John H. Nunn, M.A.: F. Gifford, W. J. Brett, John A. French, V.P.; R. S. Vanston John T. Fox, J. T. L. Overend, LL.B.; John J. Adams, S. Hemphill, W. P. M'Evoy, W. J. Brett, T. C. Franks, M A.; R. S. Reeves, R. B. White.

Mr. WAKELY, Secretary, read the notice convening the meeting, and the minutes of last meeting which were signed by the chairman.

Mr. DUNNE moved, and Mr. R. K. CLAY secouded, "That Mr. Stapleton, Mr. Dix, and Mr. Hayes be elected auditors for the coming year.'

The resolution was carried.

Messrs. Bradley, Kilbride, Miley, Rosenthal, and E. H. Tatlow were appointed scrutineers of the ballot for council, to be held on the 21st November by the President.

Mr. JOHN F. HARKAN, in accordance with the notice of motion, moved

"That a Bill to amend and consolidate the laws relating to solicitors and to the service of indeutured apprentices in Ireland (No. 182) having been brought forward in the present session of Parliament at the instance of the Council of the Society calls for the careful and serious consideration of several clauses proposing new laws and regulations of the highest professional importance.

1st. That the appeal to the judge or judges mentioned in several clauses of said Bill should in all cases consist of five judges of the High Court of Justice.

"2ud. That Clause 18, empowering a single judge, without the assent or recommendation of the Council, to dispense with the preliminary examination as to the literary qualification of an intended apprentice, is derogatory to the Society and the Council, and an injury to the profession and the public at large.

"3rd. That in Clause 25, sub-section 2, it is declared that an apprentice while serving his apprenticeship can bold any office or engage in any employment with the assent of his master and the nominal approval of the judge We, therefore, consider that said new law thus proposed is highly objectionable, and if enacted will lead to the abolition of legal apprenticeship, and under any circumstances the full sanction of the Council should first be obtained before any such permission should be allowed.

"4th. That Clauses 36 and 37, laying a procedure for striking a solicitor off the roll, are not framed to secure a full and impartial inquiry and trial, and to which the