1st. A solicitor's lien only attaches where there is W. T. Whyte, C. J. Adams, A. Sparks, J. J. Salmon, some definite fund under the control of the Court. and S. Atkinson. 2nd. The lien, if it ever existed, has been discharged by taking the debtor in execution, 1 & 2 Vict. c. 110, s. 16; The plaintiff, being lessee of the house 373, Oxford Street, for a term of twenty-one years, from the 25th of December, 1842, underlet it on the 9th of June, Morgan v. Cubitt, 3 Exch. 612 (see per Parke, B., 1861, for the then residue of the term, less seven days, p. 615) ; Jauralde v. Parker, 30 L. J. Ex. (N. s.) 237. And as to the nature of a solicitor's lien, Lloyd v. Mansel, 22 L. J. Q. B. (N. s.) 110; Barker v. St. Quintin, 12 Mee. & W. 451. Lloyd v. Mason is distinguishable from the present case. There an attachment was issued, and an attachment is a mode of punishment, not like a ca. sa., a mode of satisfaction, Davies v. Bush, 1 Younge, Exch. Rep. 358. Brooksbank for the defendants in the suit. STUART, V.-C., said, that a solicitor's lien for his costs was founded on the rules of this Court and the principles of common sense. It had been argued, that by taking the body in execution the petitioners had waived their right. But the cases at Law did not govern this Court, and such a doctrine had never been admitted in Equity. A mortgagee did not lose his hold on the land by imprisoning the mortgagor's person. There was no pretence for saying that the ca. sa. had satisfied the debt, or deprived the solicitor of his lien on the fund which his own diligence had recovered. The order would be, that the defendants, after deducting the costs of their appearance to this petition, should pay the balance over to the petitioners. He did not think it was a case for costs against O'Brien. Injunction-Lease-Covenant against Sales by Auction-Under-lease-Notice. An under-lease of a shop contained express permission for the under-lessee to carry on sales by auction there: but in the original lease there was a covenant, of which the under-lessee had no actual notice, against permit ting such sales to be carried on there without licence from the landlord. An injunction was granted, at the instance of the landlord, to prevent such sales from being carried on. The circumstance of an under-lease of a house occupied by a company being made by the secretary of that company, who has of himself no power to alter the nature of the occupation, is of itself sufficient to put the under-lessee on inquiry into the lessor's title. A purchaser cannot plead no notice if he abstains from calling for information to which he is entitled by law. to the defendants, Whyte and Adams, who intended to use it as the place of business of the London General Coal Company. The under-lease contained a covenant not to permit any sale by auction to be made upon the premises without the licence of the plaintiff. the basement floor; and on the 17th of September, The business of the coal company was carried on on 1862, Hammond, the secretary of the company, entered into an agreement with the defendant Sparks, whereby he let the remainder of the house to the latter for three months from the 29th of that month, with a provision for continuing the tenancy for three months longer, and so on from time to time until three months' notice of discontinuing it should be given by either party. There was no provision as to sales by auction contained therein. On the 10th of April, 1863, Sparks agreed in writing to let the shop, which formed part of the house, to the defendant Atkinson for six months, from the 13th of April; Atkinson agreeing "to use the said shop only for the sale of Birmingham and Sheffield goods, jewellery, clocks, and cloths." At the foot of the agreement were these words, "A.S. Mr. S. Atkinson to sell his goods by auction." The defendant Salmon was employed by Sparks to carry on sales by auction in the shop. No application was ever made to the plaintiff for a licence to carry on sales by auction; and on learning that such sales were being carried on there, he gave notice to Salmon to desist, and subsequently filed this bill to restrain him and the other defendants from acting in breach of the covenant. A motion was now made for an injunction. Giffard, Q.C., and Hetherington, appeared for the plaintiff. Everett, for the defendants, except Whyte and Adams, urged by way of defence, that Atkinson had no notice of the covenant in the lease of 1861. He argued that such notice was necessary in order to support the application for an injunction, as the covenant did not run with the land, Tulk v. Moxhay, 2 Ph. 774. Atkinson could not be bound by every covenant in the original lease, otherwise there would be an end of the distinction between an under-lease and an assignment, Moore v. Greg, 2 Ph. 717. The remedy of the plaintiff was by re-entry, Giffard, Q.C., in reply, submitted that Atkinson had not used reasonable diligence in inquiring into the The bill in this suit was filed by J. F. Parker against title. Wood, V.-C. } 7 MAY, 1863. Re TURBUTT'S ESTATE. Estates Act, 19 & 20 Vict. c. 120, ss. 16, 17, 36-Lunatic not found so by Inquisition. WOOD, V.-C., said, that a person could not be allowed to take a sub-lease of a house and enter into possession, and then turn round and say that he was entitled to disregard the covenants in the original Practice-Petition-Leases and Sales of Settled lease simply because (which was the excuse made here) he had asked no questions about them. It was true that it was unusual to ask such questions, and probably, if they were asked, lessors would stipulate against inquiries into their titles. If Atkinson had taken his lease under such a stipulation, a very difficult question would have arisen as to how far he ought to be held bound by the original covenants; but, as the case stood, he had not exercised the privilege given him by the law of inquiring into the title, and must be taken to have notice of the covenants. He could not accede to the proposition that the proper remedy was by re-entry; though a sub-lessee might break the covenants, yet the original tenant might be a highly desirable one, and the landlord ought not to be compelled to deprive himself of such a tenant by re-entering. It was then pointed out to his Honour that certain inquiries had been made by Atkinson, and the facts relating to them appeared to be these : The Court, on application for the purpose, dispensed with a lunatic, not found so by inquisition, being made a party to a petition under the Leases and Sales of Settled Estates Act, it appearing that the lunatic had a present right to a definite annual sum out of the settled property. C. M. Roupell applied to the Court to dispense with a person who was a lunatic, but not found so by inquisition, being made a party to a petition under the Leases and Settled Estates Act. The lunatic was entitled to an income of 2001. per annum out of the settled property. The Act contains no provisions for the exercise of the powers thereby conferred by or on behalf of lunatics who have not been found to be so by inquisition. See sections 16, 17, 36. Re Franklin's Settled Estates, 7 W. R. 45, was cited in support of the application. On the 7th of April, Sparks asked Atkinson to take the shop in question, and on the 9th of April the wife of the latter met Sparks there by appointment, in order WOOD, V.-C., assented on learning that the lunatic to see it. When there, she asked whether "he could had a present right to a definite sum out of the prolet the shop for auction." He replied that he could.perty, observing that, whatever was done, the Court She then asked him to produce his lease, which he would take care to secure this for the lunatic's benefit. promised to do. On the 10th of April, the above-mentioned agreement was executed, but it did not contain the words at the end. On the 12th of April, part of the rent, which was payable in advance, was paid to Sparks by Mrs. Atkinson, who again asked him to produce his lease. He refused to show it, but read it to her. She then remarked that the agreement with Atkinson ought to have contained permission to carry on sales by auction, on which Sparks added the words at the foot of the agreement. WOOD, V.-C., held that sufficient inquiry had not been made. The circumstance of the agreement with Sparks being entered into by the secretary of a company, who could not of himself alter the nature of the occupation, ought to have put Atkinson on further inquiry. A purchaser could not shield himself under the plea of no notice, if he abstained from obtaining information to which he was entitled by law. Minute.-Salmon consenting to have the bill dismissed as against him without costs, an injunction in terms of the covenant was granted against the other defendants. Note.-See, Jones v. Smith, 1 Ha. 43, and the cases cited there, p. 63. Wilbraham v. Livesey, 18 Beav. 206. Suspicious Claim against Estate Refusal by Trustees of a composition deed under the Bankruptcy Act of 1861, refusing to pay a suspicious claim on the debtor's estate, ordered to pay it, but allowed their costs out of the dividend due to the claimant. In this case, Wheeler, the debtor, had executed a trust deed in December, 1861, whereby he assigned all his personal estate (except leaseholds) to trustees for the benefit of his creditors. This deed was duly registered. Miss Groves was a creditor for 967. 10s., for which amount she had executed the deed, and her signature to it was attested by the solicitor to the present trustees. It appeared that her debt was made up of advances made by her to Wheeler at different times, for which he gave her his acknowledgment, written on separate bits of paper. After the registration of the above-mentioned deed, Miss Groves, thinking to obtain a more formal security for her advances, asked Wheeler to give her one, and he thereupon gave her a promissory note for the full amount, which note was dated in 1860, but bore a stamp apparently issued in February in the present year. This transaction having come to the knowledge of the trustees, they required Miss Groves to substantiate her claim on the debtor's estate by a statutory declaration, the form of which was supplied to her by the trustees or their solicitor, which declaration she accordingly made. The trustees realised the property of the debtor, and proceeded thereupon to pay a dividend of 4s. in the pound. They refused, however, to pay Miss Groves, alleging, in a letter written to her, or to her solicitor, "that they would not pay one farthing until compelled to do so by a Court of Law." Accordingly, Miss Groves took out a summons against them, and upon that summons the case came on in this Court. In support of her application, she made an affidavit verifying the above facts, and substantiating her claim. She also produced a memoran dum book, containing entries of moneys paid by her to or for the benefit of the debtor, from time to time, between 1859 and the present time. It also appeared, from her affidavit, that for some years she had been lodged and boarded with Wheeler's family, and that these advances had been made at Wheeler's request to his wife, during his absence. Doria, for Miss Groves, contended that the defect in the promissory note, caused by the faultiness of the stamp, was easily to be accounted for by Miss Groves' ignorance of law. Bayley, contrà, said that the refusal on the part of the trustees to pay in this case, arose from a suspicion that no debt whatever was due from Wheeler to Miss Groves. There was much doubt whether the entries in the memorandum book were genuine, and the stamp on the promissory note could not have been issued out of the office for more than a year after the written date appearing upon it. Doria replied. HIS HONOUR said, that there being the oath of Miss Groves in substantiation of her claim, and nothing to contradict it, he felt bound to admit the claim. The suspicion, however, entertained by the trustees of its validity, was justifiable, and they were perfectly right in requiring evidence of the validity of the demand which she made on the debtor's estate. There was no doubt, moreover, that the entries in the memorandum book had all been made at the same time, which was an additional reason for suspicion. In admitting the claim, therefore, he should abstain from visiting on the trustees the costs of the present application. He accordingly ordered, that the trustees should pay the dividend to Miss Groves, deducting therefrom their own costs. Property given to bankrupt during the thirty days allowed for appeal by the 171st sect. of the Bankruptcy Act of 1861, and before the order of discharge has been finally drawn up and signed, will pass to the assignees, and not to the bankrupt. This was a special case for the opinion of the Court. On the 6th of October, 1862, the debtor was adjudged a bankrupt. On the 22nd of October, 1862, the meeting took place for the choice of assignees, and on the 28th of November, 1862, the bankrupt passed his examination, and obtained an order of discharge. On the 30th of December, 1862, the thirty days required by the statute having elapsed, the order of discharge was drawn up, signed, and sealed. The usual advertisement was put in the newspapers and Gazette on the 2nd of January, 1861, and was as follows: "The Bankruptcy Act, 1861.-Notice is hereby given, that the Court, acting in the prosecution of a petition for adjudication of bankruptcy, filed on the 6th day of October, 1862, by C. R. R. Laforest, of 59, Rupert-street, Haymarket, in the county of Middlesex, Wine Merchant's Clerk, did, on the 28th day of October, 1862, grant the said bankrupt an order of discharge. "H. P. ROCHE, Registrar.” In the mean time, and on the 2nd day of December, 1862, Mrs. Jane Martha Welsh, who had by her will, dated 10th January, 1860, bequeathed to the bankrupt a legacy of 1007. and one equal seventh part of the residue of her estate, died. Her will was duly proved by the two executors therein named, one of whom has since died. The bankrupt applied to the surviving executor for the payment of his legacy, as being entitled thereto by having obtained his order of discharge. The executor, however, considered, that the order of discharge not having yet been formally drawn up, he ought not to pay the legacy to the bankrupt without the express order of the Court. The question, then, for the opinion of the Court was, whether the bankrupt or his assignee was entitled to receive this legacy. Bagley, for the assignee, referred to the 170th sect. of the Bankruptcy Act of 1861 :-" The order of discharge shall not be drawn up until after the expiration of the time allowed for appeal." By sect. 171, the time allowed for appeal was "thirty days after any order of discharge shall have been allowed or refused." Now, the order of discharge could not bear date until it was drawn up. It could not be drawn up until thirty days had elapsed; consequently it could not take effect, and no property could pass to the bankrupt in the interval between the pronouncing of the judgment and the drawing-up of the order. So the legacy must pass to the assignee. He dwelt further on the distinction between the wording of the new Act and that of the Act of 1849, pointing out that in the latter the word "allowance" of the certificate was always used; in the new Act the phrase was "order of discharge taking effect." There was no hardship in this legacy passing to the assignee if the facilities given to bankrupts under the new law were taken into account; for whereas under the old law there must have been separate meetings for the last examination and the granting of the certificate, under the present law, as in this very case, the debtor passed his examination and obtained his discharge at the same meeting. Moreover, the new law gave far greater advantages to non-traders, for the order of discharge, when complete, protected their future property in the same way as that of traders had always been protected. In this very case, the debtor was a non-trader. He referred to the case of The Risca Coal and Iron Company, 8 Jur. (N. s.) 900, in which the Lord Chancellor laid it down, that the order of the Court must be accepted for all purposes as made on the day on which it was dated, for other wise inconvenience and uncertainty must take place. the Act of 1849. As the certificate of conformity was complete when it was allowed, so also was the order of discharge final and conclusive from the time that judgment was pronounced. Would it be contended that the bankrupt could be taken into custody after judgment, though the thirty days had not elapsed? This could not be held, seeing that the new law was more favourable to debtors than the old. He likened the judgment on the order of discharge to a rule nisi, to be made absolute unless cause were shown to the contrary, and the very words of the rules and orders showed what the intention of the Legislature was. In sched. 17 to the Act of 1861 were these words :-“ It was adjudged by the Court that the said bankrupt was entitled to such discharge, whereupon such discharge was and is hereby allowed and granted accordingly." Morgan appeared for the executor, and submitted to the judgment of the Court. HIS HONOUR, without calling for a reply, said, that it seemed to him that the construction to be put upon the several sections referred to was, that the judgment of the Court, when it said that the bankrupt was to be granted or allowed, or was entitled to an order of discharge, was inchoate and imperfect until the expira tion of the thirty days. The order of discharge freed the bankrupt from all debts, but the words of the statute were plain, that such order could not bear date until the expiration of a certain time from its being granted, and could not take effect for the protection of property coming to the bankrupt until such order was drawn up. It was that final document, so drawn up and signed, which freed the bankrupt from all debts and liabilities. It could not be taken that the mere adjudication of the Court did so. There was to be something more,-the Hardy, for the bankrupt, admitted that there was a good deal of obscurity in the wording of the Act of 1861, but thought that the several sections could and ought to be reconciled. It was to be remarked that, in reference to the order of discharge, the following words occurred "taking effect," "made," "allowed," granting," obtaining." He contended that the order of discharge must be taken as dealt with conclusively when the judicial act of pronouncing judgment was accomplished. The Court thereby discharged its functions, and it was absurd to suppose that an important-its most important function-should re-expiration of a certain time and the drawing up of the main unevidenced. He referred to sect. 171, in which the words "allowed or refused" occurred; words clearly pointing to the judgment of the Commissioner, and not to the subsequent and merely ministerial act of drawing up the order of discharge. The word "obtain" was used in sect. 141 of the Act of 1849; as also in sects. 198 and 205 of the same Act. The same word was to be found in the new Act, and was equivalent to the phrase "allowance of certificate" in order. Reasoning by analogy, under the old law, after a certificate was signed by the creditors, even after it was signed by the Commissioner, a legacy such as this would have passed to the assignees at any time before the certificate was confirmed by the Lord Chancellor. Under the circumstances of this case, he felt bound to say that the legacy passed to the assignee, and not to the bankrupt. Costs out of the estate. Q. B. 29 APRIL, 1863. COMMON LAW. THE INHABITANTS OF PRESTON, Order of Removal — Residence in Union for 55, s. 1 By sect. 1 of 24 & 25 Vict. c. 55, it is enacted, that "after the 25th March, 1862, the period of three years shall be substituted for that of five, specified in 9 & 10 Tit. c. 66, sect. 1; and the residence of a person in any part of a Union, shall have the same effect in reference to the provisions of the said section as a residence in any parish: Held, that such "residence of a person in any part of a Union," includes a residence which occurred, wholly or in part, before the 25th March, 1862. CASE stated by consent of the parties on an appeal from an order of two justices of Lancashire, dated 14th March, 1862, removing a pauper from the township of Blackburn to the parish of Preston. During the eighteen months immediately preceding the 14th of March, 1862, the pauper had resided in the respondent's township; and during the three years immediately preceding those eighteen months, he had resided in the township of Livesey. The respondent's township, and the township of Livesey are both in the Blackburn Union. It was admitted that the pauper's legal settlement, at the time of the making of the order, was in Preston; and, therefore, that the order was good if the pauper was removable. By 9 & 10 Vict. c. 66, s. 1, it is enacted, that from and after the passing of that Act, no person shall be removed, nor shall any warrant be granted for the removal of any person from any parish in which such person shall have resided for five years, next before the application for the warrant." By 24 & 25 Vict. c. 55, s. 1, it is enacted, "that after the 25th day of March, 1862, the period of three years shall be substituted for that of five years, specified in the 1st sect. of the statute, 9 & 10 Vict. c. 66; and the residence of a person in any part of a Union shall have the same effect in reference to the provisions of the said section, as a residence in any parish." The question for the opinion of the Court was, was or was not the pauper removable to the appellants' parish at the time of the making of the order? J. B. Maule, for the respondents. The latter part of sect. 1 of 24 & 25 Vict. c. 55, which declares that "the residence of a person in any part of a Union shall have the same effect in reference to the provisions of the said section, as a residence in any parish," is not retrospective. In order that a pauper may become irremovable under that part of the section, the three years' residence must begin after the passing of the 24 & 25 Vict. c. 55. Here the pauper can only come within the latter part of the section, if he comes within the section at all; and, therefore, the order of removal is good. It is contended, that, according to the true construction of the language of the statute, the date of "the 25th of March next," named in this section, refers to the period of residence, and not to the effect which that residence is intended to produce. Patchett, for the appellants, was not called upon. COCKBURN, C.J.-Our judgment must be for the The language of the Act does not, appellants. perhaps, express the intention of the Legislature as plainly as it might have done; but I cannot conceive any reasons why the operation of the latter part of the section should be postponed for three years, and I have no doubt that it was intended that the effect of the whole section should be retrospective. It is not disputed that the former part of the section is retrospective. The order of the justices must therefore be quashed. CROMPTON, BLACKBUKN, and MELLOR, JJ., concurred. } Judgment for the appellants. KILSHAW v. JUKES. Q. B. 12 FEB., 7 MAY, 1863. Partnership-Sharing of Profits—Undisclosed Partner-Principal and Agent. T and W having become jointly indebted to J, and being unable to make immediate payment, it was agreed between them that the three should purchase some land, upon which T and W were to build certain houses, J (who was an ironmonger) supplying the necessary ironmongery only, and that the profits arising from the sale of the houses, when completed, should be applied in the first place to the payment of the debt due to J, and of the further sum due for the ironmongery supplied by him, J agreeing to forego his debt if the houses did not realise sufficient to make these payments; but any sur |